A strata corporation has control over the common property and most (if not all) strata bylaws require approval of the strata to make alterations to the common property. In the case of a patio extension onto common property, an owner does not have an automatic right to extend their patio or make changes to the common property (or limited common property) backyard.
As with all decisions of the strata council, a decision to approve or not approve a patio extension must be fair.
In the case of Wilder v The Owners Strata Plan BCS 3152, 2019 BCCRT 212, the owners wanted to expand the size of their patio onto limited common property. In this case, the strata was a townhouse style strata and the yard area behind each strata lot was limited common property for the exclusive use of each strata lot. The owners purchased a strata lot with a 16 foot by 8 foot patio and wanted to increase the size to 31 feet by 14 feet. The strata initially denied the expansion as it was too large.
The owners then applied twice more for smaller patio extensions. The strata and the owners were unable to agree on the permitted patio extension and the owners sued the strata in the CRT.
The CRT found that the strata was acting significantly unfairly to the owners in denying their reasonable request for a patio extension for the following reasons:
- the owners had a reasonable expectation that they would be able to expand the patio; and
- at least 8 other strata lots had similar patio extensions to the owners’ original patio request (31′ by 14′).
The CRT noted:
Thus, the owners in this dispute were held to a different standard than other owners, for no identified reason.
As a result, the owners were entitled to expand their patio an extra 4 feet on three sides.