Yes then no: Kelowna couple lose legal fight with strata over sunshade
A Kelowna couple will have to live with the hot Okanagan sun baking their patio after their strata rescinded its approval of a pergola and sunshade they had built.
The couple will also have to suck up the $14,000 cost of building the 12-foot shade and pay a $200 fine for constructing the unauthorized structure, along with $8,500 in legal fees.
The case involves Lisa and Steve Parsons who in 2021 asked their Sunset Drive strata for permission to build a 12-foot by 11-foot pergola and sunshade on their deck.
The couple received several informal emails giving them the OK for the structure including in April 2021 when the strata got detailed plans and drawings and said the application had been approved.
The Parsons promptly spent $14,261 to build the structure and the contractor they hired said the money was non-refundable.
However, a month later the strata changed its tune and said it had sought legal advice on whether it could approve the sunshade without going to a vote at a strata meeting.
The strata told the couple to refrain from building the structure until the legal opinion had been finalized.
However, the couple allowed the contractor to complete the construction of the pergola and sunscreens.
The strata then held a meeting to vote on whether to approve the structure but the Parsons failed to get the three-quarters vote they needed, only receiving a little over 50 per cent approval.
The Parsons then took the strata to the Civil Resolution Tribunal.
The couple argued the eight-foot high, four-post pergola was not a "significant change" to their unit and therefore approval did not need to go to a vote at a strata meeting.
However, the Civil Resolution Tribunal disagreed.
Much of the June 21 decision is given to discussing what constitutes a "significant change" to a strata building.
"Photos show the pergola is readily visible to the public and other residents, including other townhouse strata lots that have patios... (the Parsons' home) is also directly in front of a dock or marina. So, I find that anyone attempting to reach the dock, such as the general public, would also see the pergola and sunscreens," the decision reads.
"I find that the change would affect the Parsons’ enjoyment of their own strata lot. It would create a large, shaded area for their use," the Tribunal ruled. "I find that the change also affects the use or enjoyment of other strata lots in the strata by creating direct interference or disruption."
The strata presented three complaints about the pergola from other strata residents.
One complaint said that if such structures became commonplace, they would obstruct his view. Another complaint said they "expected" portions of their view would be blocked when the pergola was completed.
Ultimately, the Tribunal decided the pergola and sunshades had a "high degree of permanence" and were a "significant change" so had to go to a vote for approval.
"As the owners have not voted to approve the sunscreen and pergola, I find the pergola and sunscreens are in breach of the (Strata Property Act)," the Tribunal ruled.
The Parsons also argued the strata's actions were "significantly unfair" and asked that the Tribunal order the strata to allow them to keep their sunshades.
However, the Tribunal wouldn't budge.
"The Parsons made no reasonable attempt to mitigate their loss. For example, when the strata advised the Parsons to stop construction in May 2021, the Parsons did not stop or ask their vendor if it was possible to obtain any refunds. Instead, the Parsons completed construction, triggering more payments under the contract, knowing that owners would hold a vote about the structure at the August 2021 AGM," the decision reads. "I find the Parsons willingly increased their financial risk by doing so."
The Tribunal also refused to order the strata to refund a $200 fine for building the pergola along with $8,500 of legal costs the Parsons' had also sought.
While the Tribunal didn't order the couple to remove the pergola, the decision does say the strata has the right to charge them $200 each week the "unauthorized" structure is in place.
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