A Burnaby strata is on the hook to fix failing skylights installed by previous owners in the 1980s and ’90s, according to two recent Civil Resolution Tribunal rulings.
The owners of two different townhouses at the Village Del Ponte complex in the Lougheed neighbourhood took the strata to the tribunal over skylights above their units, according to two rulings by tribunal vice-chair Kate Campbell on April 11.
Owner Catherine Jensen claimed two skylights above her townhouse began leaking in 2014 or 2015.
The strata first repaired them with caulking, she said, but resorted to tarps in November 2021 when they began “leaking heavily,” according to the ruling.
Owner Éloïse Forest-Allard said three skylights above her townhouse began failing in 2020, and she had asked the strata to replace them.
Forest-Allard submitted a December 2020 roof system condition report that showed two of the skylights were damaged and should be replaced.
The strata, in both cases, made no submissions other than that it wanted to “find a resolution for the issues.”
“The strata says the question of who is responsible for skylight repairs is a ‘long-running issue’ in the strata,” states the ruling in the Jensen case. “The strata says its ownership is divided on this issue, so it is not able to take a position.”
In both cases, the owners and strata agreed the skylights were not originally part of the buildings, which were built in 1976, but installed by unknown previous owners.
“The strata admits in its submissions that many owners installed skylights in the 1980s and 1990s, with strata permission, and that no liability agreements were signed for these skylights,” state both rulings.
Since there are no written agreements, Campbell ruled skylight repairs or replacement weren’t the owners’ responsibility based on any agreement.
She also ruled the skylights in both cases were “common property,” which strata corporations are responsible to repair and maintain, instead of “limited common property,” which strata bylaws may make an owner responsible to repair and maintain.
Campbell further ruled the strata’s existing rules about skylight repairs are unenforceable because they violate the Strata Property Act.
The Village Del Ponte bylaws say the roofs above each strata lot are limited common property, and owners are responsible to repair and maintain doors, windows and skylights, but Campbell said the strata’s roofs are not designated as limited common property on the strata plan – and the skylights are not shown on the strata plan at all.
Corporations can’t designate limited common property simply by enacting a bylaw, according to Campbell.
If an area isn’t designated as limited common property on the strata plan, the strata has to either amend the plan, which requires a unanimous vote, or designate limited common property by passing a three-quarter vote at a general meeting and then filing a resolution with the Land Title Office, according to the ruling.
Campbell found the Village Del Ponte strata hadn’t taken either of those steps.
Because the skylights are common property, Campbell ruled the strata was responsible to repair and maintain them.
She gave the strata four months to replace the two skylights above Jensen’s unit and two of the three skylights above Forest-Allard’s.
Campbell said there wasn’t enough evidence about the third skylight’s condition to order a replacement but noted the strata is responsible for its repair and maintenance.
The CRT is an online, quasi-judicial tribunal that hears strata property disputes and small claims cases.
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