B.C. strata loses legal case over deck | iNFOnews | Thompson-Okanagan's News Source

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B.C. strata loses legal case over deck

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A B.C. condo owner whose deck was dramatically reduced in size by her strata has won a legal victory that might force the strata to put the deck back to how it was.

According to a March 20 B.C. Civil Resolution Tribunal decision, condo owner Kerri Stewart had a large deck adjacent to her unit. While the patio was for her exclusive use it was legally considered "common property" by the strata.

The decision says the strata removed the deck because the wood was rotting but only replaced it with a deck half the size. The remaining space was taken up with a raised garden.

The strata says it had to do this to accommodate a Sequoia tree’s root system and had done so on the advice of an arborist.

However, Stewart argued the move constituted a "significant change" and should have gone to a vote with the strata council.

She launched a case at the Tribunal against Strata Plan NW1370 asking for an order for the strata to put her deck back the way it was.

The Strata argues it installed a smaller patio and raised garden to accommodate the tree’s root system and said the unnamed city wouldn't allow it to cut the tree down.

In its defence of the changes, it says it based the decision on the advice of an arborist and was guided by professional opinions.

However, Stewart argues the renovations were a "significant change" to the property and needed to go to a vote with the strata council which hadn't happened.

"(Stewart) says she cannot use and enjoy her 'backyard' the way she used to, and says it went from being a useful patio to eat and gather on, to an area where dirt is tracked in and cannot be kept clean. She also says the change greatly depreciated the property value and negatively affects its marketability," the decision reads.

READ MORE: B.C. couple ordered to remove laminate flooring after strata wins legal fight

She argues the outdoor space was a significant factor when she bought the unit and not having the large deck devalues her unit.

The Strata says the new patio and raised garden are not a significant change of use and points out that Stewart can still use the garden.

The Tribunal isn't persuaded.

Although no evidence was provided to support the claim, in an unusual move the Tribunal agrees the change would affect the value of the condo.

"I find that replacing the deck with a smaller patio and a raised garden is a significant change to the use and appearance of common property. Therefore, I find a three-quarter vote to approve the change was required under (the) Strata Property Act," the Tribunal rules.

Ultimately, the Tribunal orders the Strata to have a vote on the change within 90 days and if it doesn't pass to replace the raised garden with a comparable deck of the same size and function as the original.

READ MORE: Tribunal rules B.C. strata treated owner 'significantly unfairly' in denying balcony request

The Strata is also on the hook for $225 in fees.

To contact a reporter for this story, email Ben Bulmer or call (250) 309-5230 or email the editor. You can also submit photos, videos or news tips to the newsroom and be entered to win a monthly prize draw.

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