Strata Corporation Bylaws and Human Rights Code - Approval Requirement for Installation of Wood Flooring Unenforceable #371
CATEGORY: Legally Speaking
TAGS: Bylaws Human Rights Act Strata Properties
By Gerry Neely
A licensee's client took title to a unit with a floating wood floor, in a strata corporation whose bylaws required strata council approval before installation. Neither the licensee nor his client knew the previous owner had not applied for permission until after closing. It had not occurred to them to ask and, fortunately, the strata council decided not to force its removal.
The licensee emailed BCREA suggesting other licensees should be advised of this potential risk.
There are two cases dealing with bylaws that either prohibit or require permission for the installation of hardwood or laminate flooring and, oddly enough, they involve the same strata corporation.
In the first case, the initial bylaws required permission for any "structural" alteration of the interior of the building. In May 1998, an owner applied for permission to install wood flooring, even though he did not believe the bylaws applied. Permission was denied and the issue was argued until July 2000, when the owner installed the wood flooring without permission. During this period, the strata corporation added legal fees, interest and fines to the owner's monthly assessment. The owner refused to pay these "violation charges."
In 2002, the strata council advised the owner's mortgagee of the lien for the charges it had filed against the title. This, and the denial of the right to vote at a meeting, led the owner to petition for a declaration that the installation of the wood flooring was not a structural alteration and for the cancellation of the "violation charges."
The judge had no difficulty in deciding a structural alteration meant a major change, such as the removal of a load-bearing wall. It had to be more than replacing wall-to-wall carpeting with wood or laminate flooring.
If the judge needed any help in deciding the initial bylaw did not apply to flooring, he found it in the revision of the strata bylaws in 2002, redefining "structural alteration" to include an alteration to the floor that changed the normal use of the floor. And, to make absolutely certain, the bylaw went on to state that only wall-to-wall carpeting with appropriate underlay was allowed. The owner's petition succeeded.1
In the second case, a strata owner with severe allergies to latex found in machine-manufactured carpets made a complaint under BC's Human Rights Code. She was also sensitive to dust mites, fungi and mould, which contributed to asthmatic reactions. Two medical specialists and her general practitioner advised that removing the carpet in her unit was essential to reduce her severe allergies and sensitivity.
If certain broad conditions are met by a complainant, the Code prohibits discrimination against a person with a physical disability. A tribunal held she had a physical disability and the strata corporation's refusal to allow her to replace her carpet was discriminatory. The strata corporation was ordered to allow her to install hardwood flooring with an appropriate quality underlay to provide adequate sound insulation.2
In reaching its decision, the tribunal referred to two cases of discrimination against elderly and handicapped women whose strata corporations limited their access to caregivers and emergency medical emergency services. In one case, modifications to the intercom and entry system made it difficult, if not impossible, for these services to be provided. In the second case, the bylaws provided that only residents with driver's licenses could have parking stalls. The elderly owner did not have a driver's licence and was unable to have a dedicated parking stall for her caregivers.
|1.||Harvey and Genge v. The Owners, Strata Plan NW 2489, SCBC, Vancouver, Reasons for Judgment, August 29, 2003.|
|2.||Konieczna v. Owners Strata Plan NW 2489 2003 BCHRT 38.|
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