In a 2015 BC Supreme Court decision, the strata corporation sought the assistance of the Court to remedy an issue with their visitor parking. All owners of the strata corporation had been under the impression that several spaces were visitor parking spaces. However, when the Chows moved in, they found out that the visitor parking space next to their unit had actually been designated as LCP for their benefit. Other owners then became aware of the same thing and, therefore, all visitor parking spaces were actually LCP parking spaces. Those owners then starting using those spaces as their parking spaces.
As a result, the strata corporation had no on-site visitor parking. In response, the strata council tried to pass a unanimous vote resolution to amend the strata plan and remove the LCP designations. The Chows refused (and several other owners refused) and the vote failed.
At the BC Supreme Court level, the Court only considered the issue from an unfairness perspective: whether it was significantly unfair to the other owners for the Chows to refuse to amend the strata plan and remove the LCP designations. The BC Supreme Court found that it couldn’t be significantly unfair for an owner to refuse to vote in favour of a unanimous vote.
However, the BC Supreme Court’s analysis was found to be incorrect by the BC Court of Appeal.
In the recent case of Chow v The Owners, Strata Plan NW 3243, the Court of Appeal determined that the Judge failed to take into account Section 14.12 of the Strata Property Regulation which permits the correction of a strata plan that has been filed in error. The Supreme Court Judge only dealt with the issue of unfairness and failed to consider the ability to amend the strata plan as it may have been filed in error.
The evidence before the Supreme Court Judge was that the surveyor must have made a drafting error in making the visitor parking spaces LCP. The Court of Appeal noted that, “the first question that needed to be answered definitely was whether the strata plan contained an error in its description of the parking spots as limited common property. Such a finding is the foundation for the rest of the analysis.” Section 257 is not the only means by which errors in the designation of property in a strata plan can be rectified, section 14.12 of the Regulations also applies.
As a result of the Judge failing to consider section 14.12 of the Regulations, the matter was sent to a new hearing in front of the BC Supreme Court so that the appropriate evidence could be considered as to whether section 14.12 could properly be applied.