Strata Lots – “Grandfathered” Rights – Do they really exist?

Strata Lots – “Grandfathered” Rights – Do they really exist?

In a recent case of the Supreme Court of British Columbia , the Court was asked to consider the ability of a strata corporation to regulate the air space above a strata lot – an issue that had not been considered in the context of the Strata Property Act. This case is important in that it demonstrates that purchasers should be wary of assurances of “grandfather protection” excusing compliance with existing bylaws, even when such assurances are made by the strata corporation.

The case involved a dispute between the owner of a ground floor unit in a high-rise strata building and certain other owners. The owner had a patio from which a tree stood at about the height of the building. Most owners wanted the tree to conform to a height consistent with the horizontal plane of the Unit’s ceiling to preserve their light and views. The fact that the proposed course would kill the tree was not disputed.

The defendant strata corporation passed a bylaw requiring the owners of ground floor units to ensure that any foliage on their strata lots did not extend beyond the boundaries of their lots.

The strata owner argued that the enactment of the by-law, and its enforcement against her, would be “significantly unfair” within the meaning of section 164 of the Strata Property Act because the tree’s intrusion above the upper boundary was tolerated since she purchased the Unit in 1990. The strata owner also argued that the respective failures by the Strata Corporation and the owners to enforce a previous bylaw respecting foliage and express any concerns about the tree until 2006 prevented them from taking the proposed action.

The Court focused on the issue of whether the Strata Corporation, as the party responsible managing and maintaining its “common property” for the owners’ benefit under the Strata Property Act, could regulate the space above the Unit’s patio and Upper Boundary or the disputed space on the basis that it was “common property” under the Strata Property Act.

The strata lot owner argued that the Land Title Act provides a comprehensive scheme for the registration of “air space parcels” as interests in land and, as no “air space plan” creating any such parcels was filed in the Land Title Office, there was no defined air space belonging to the Strata Corporation.

The Court noted that the strata plan defined a vertical limit to the Unit’s patio space consistent with the Upper Boundary. The Court remarked that, while the Disputed Space did not form part of any strata lot, it was buildable space that could form part of a strata lot if the building was expanded. The Court found that the Disputed Space met the definition of “common property” as land “shown on a strata plan that is not part of a strata lot”.

The strata lot owner in this case was assured by the vendor and realtor upon purchasing the Unit that the tree had “grandfather protection” from existing bylaws. Though it is clear the representations made by the vendor and realtor could not bind the Strata Corporation, the Court noted that had the Strata Corporation made such an assurance, it would not be effective because section 76 of the Strata Property Act prevents a strata corporation from granting exclusive use of “common property” to an individual owner for more than one year. Purchasers of strata property should confirm that any assurances of “grandfather protection” do not involve the common property of the strata corporation. Purchasers of strata lots with patio space should confirm the air space above their lot is unbounded if such a consideration is important to them.

Chan v. Owners, Strata Plan VR-151, 2010 BCSC 1725

Contact Michael Tatchell of DuMoulin Boskovich LLP for your legal needs.

mtatchell@dubo.com