Some strata corporations are so close to each other that the access to one is over the roadway of another, or they share use of common facilities. In some cases, the developer for the two stratas was the same developer and they created a facility sharing agreement – such as a parking area facility agreement.
These types of stratas are certainly more complex and are becoming more common in cities like Vancouver. Two recent cases of the BC Supreme Court dealt with a dispute over the costs obligations of an easement.
In the case of The Owners, Strata Plan NWS 3457 v The Owners, Strata Plan LMS 1425, 2017 BCSC 1346 (“NWS 3457”), the two adjoining stratas (Scottsdale and La Costa) were in a dispute as to the responsibility to pay for the upkeep of a recreational facility.
And, in the case of The Owners, Strata Plan BCS 4006 v Jameson House Ventures Ltd, 2017 BCSC 1988 (“Jameson House”), the dispute involved the operating and maintenance expenses of the parkade.
In easement law there is a dominant tenement and a servient tenement. In layman’s terms, the servient tenement is the owner of the land in question who has to make the land available for use of his neighbour. The dominant tenement is the neighbour who has the right to use his neighbours’ land.
In the case of Jameson House the servient tenement was a parking facility and the dominant tenement was the strata. The easement gave the strata owners the right to use the parking facility. The easement also required the strata to pay a portion of the operating costs of the parking facility.
The Strata in Jameson House applied to the Court for an Order that it wasn’t responsible for the operating and maintenance costs of the parkade because the Strata didn’t sign the easement – the Owner Developer had.
A very similar situation happened in NWS 3457. Scottsdale had a recreational facility (a community building with a sauna, kitchen, exercise room, etc.) that La Costa was entitled to use by way of easement. The easement also required La Costa to pay a proportional cost of the recreational facility’s operating and maintenance costs. Years later, La Costa no longer wanted to use or pay for the recreational facility and ‘surrendered’ its rights under the easement. Jameson House sued La Costa for the ongoing cost of the facility.
Easements are only permitted to prevent the parties from acting; therefore, the servient tenement has no obligation to maintain the easement area. Further, easements are not permitted to require any party to pay the costs of the easement area. A cost sharing obligation in an easement was found in both cases to be unenforceable because it required the one party to act: pay the proportional costs.
In both cases, La Costa in NW 3457 and the strata in Jameson House, were declared by the Court not responsible to pay for the costs under each easement.
If the developer, in both cases, had made the strata corporation sign an assumption agreement of the easement, both strata corporations could have been bound to the cost sharing obligations. However, the developer in both strata corporations didn’t do that when the strata corporation was deposited in the land title office.
These decisions can appear harsh on the affected parties and will likely affect many complex developments that rely on easements for cost sharing schemes. That is not to say that all cost sharing schemes in all easements are not enforceable, it always depends on the circumstances in every case.