Parking Stalls and Strata Units #464

By Jennifer Clee
B.A., LL.B.

Licensees often mistakenly misrepresent the parking included with a strata unit sale, as a result of relying upon the seller for that information. As many sellers are mistaken as to their parking rights, licensees cannot rely upon sellers to provide accurate parking information.

Parking stalls are designated either as part of a strata lot or as common property. Parking stalls designated as common property generally fall under the control of the strata corporation.¹ As a result, an owner's apparent right to use a parking stall designated as common property may not be transferable to future buyers.² A parking stall designated as part of a strata lot, or as limited common property, will entitle a buyer of that strata lot to exclusive use of the stall. Where a parking stall is not so designated, a buyer may not have the right to use the stall, despite the seller's use.

The recent decision of Blackall v. Jarrold et al.³ concerned a dispute over parking. In Blackall, the buyers of a strata unit sued the sellers for negligently misrepresenting the number of parking stalls included in the sale. The Property Disclosure Statement stated that "parking stalls 598 and 601 are included in the purchase price along with storage locker 291, all of which will be assigned by the buyer on completion date." Both the buyers and the sellers believed that the parking stalls were designated as limited common property (LCP), and thus for the sellers' exclusive use.

In fact, only one of the stalls was designated LCP. While the original purchasers of the strata lot had paid the developer $5,350 for the use of the second parking stall at the time of their purchase, neither they nor the developer took steps to amend the strata plan. Thus the second parking stall, as common property, remained under the control of the strata corporation.

The buyers' claim against the sellers was dismissed. The court found the buyers had a clear opportunity to discover the parking stalls' status before removing subject conditions. The contract was subject to the buyers receiving and approving the usual strata documentation and verifying the status of the parking stalls associated with the property. The court held that the buyers' failure to carefully review the registered strata plan prior to removing subject conditions (a review of which would have shown only one parking stall designated as LCP) constituted a failure to exercise reasonable care and due diligence.

The buyers and sellers in Blackall were each represented by licensees in the transaction, but neither added the licensees as parties to the action. The licensees' absence from the litigation did not stop the court from expressing its opinion that the licensees' failure (and that of the licensees involved in the earlier sale of the property) to verify the status of the parking was negligent. The court stated, "Both the Grewals and the Defendants used real estate agents. Both real estate agents erred and failed to exercise a reasonable standard of care placed upon them in representing their respective clients' interests."

Effective January 1, 2014 strata corporations will be required to identify how parking (and storage lockers) are allocated to strata lots on the new Form B.⁴ However, to avoid claims, licensees are well advised to:

• review the strata plan and filed amendments, the common property record and any other related strata documents to verify parking stall designation,
• review the Real Estate Council of British Columbia's Professional Standards Manual (PSM) for advice as to how to accurately describe parking stalls when listing a strata property, and
• include, in any offers, those subject conditions referred to in Blackall, and found in the PSM.

	1.	Except where the strata corporation has leased the common property parking to a developer or related entity. See the Professional Standards Manual, II. Trading Services, Strata Sales, (xiv) Parking Stalls and Storage Locker.
	2.	See the Professional Standards Manual for a description of the usual arrangements that apply to parking stalls designated as common property.
	3.	Blackall and Homan v. Jarrold and Foster, 2013 BCPC 4 (CanLII).
	4.	Order in Council 623, December 13, 2011, Strata Property Amendment Act, 2009, S.B.C. 2009, c. 17.

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