It is common knowledge that strata councils operate with the interest of the building in mind, not the interest of an individual owner. In a recent dispute, Nabeel Moallem, a lawyer at Sodagar & Company, overturned a strata council’s decision that an insurance deductible in the sum of $25,000 was due and payable by an individual owner.
Our client was the owner of a condominium in downtown Vancouver. A blockage was caused in the kitchen sink drain line of the unit leading to back up. Stratified properties are required to always maintain valid insurance for all common property in accordance with section 149 of the Strata Property Act. The strata made use of the insurance in place, for which the deductible was $25,000. The strata proceeded to attribute fault of the damages to our client, the condo owner, and claimed the insurance deductible from them.
Section 158(2) of the Strata Property Act specifies that the liability to pay the insurance deductible falls with the party “responsible for” the damage to the property. In addition, the particular bylaws for this specific strata specified, that the owner would be responsible for the insurance deductible if the damage was caused through their “willful act, carelessness or negligence” Despite evidence that the homeowner was not even in the property at the time of the blockage, the strata unilaterally held that the the homeowner was negligent.
We relied on Strata Plan LMS 2446 v. Morrison, 2011 BCPC 519, wherein the Provincial Court held that in cases where legislation and strata bylaws have differing standards for liability, the bylaws can import a standard in addition to what is stipulated in legislation.
Our argument was that per the strata’s bylaw, negligence was required to impart liability and the homeowner’s use of the garburator was not negligent. The homeowner used the garburator in accordance with its normal functions, and the blockage of the drain was due to issues with the construction of the plumbing. This was further corroborated by various surveys and reports commissioned by the homeowner and strata. The strata nonetheless tried to blame our client for the damage caused. Ultimately, the Civil Resolutions Tribunal granted judgement in favour of our client, the homeowner.
Strata companies seek the best outcome for the building, which at times is adverse in interest to an individual owner. The strata’s position was put forth with no real evidence of negligence, yet if it wasn’t for the Civil Resolution Tribunal’s decision, the homeowner would have been held liable.
The interpretation, and the nuances in dealing with matters such as these are very complicated, and these are not small amounts. In many cases where fines are levied, strata companies depend on the owners to simply comply without taking a stand. It is always advisable to reach out, and be clear about your rights, and our lawyers at Sodagar & Company can use their knowledge and expertise to assist you in determining your rights, and planning a course of action when such issues arise. You can use this form to schedule a consultation with one of the lawyers and Sodagar & Company Law Corporation.
