All strata lot owners own the common property. Neither an individual owner nor the strata council can make a significant change to the use or appearance of common property without approval by the owners at a general meeting.

Minor versus Significant Changes

It is important to recognize that legally a change to the use and appearance of common property or land that is a common asset is either “significant” or “not significant”.

A change that is “not significant” can be done as long as it is consistent with the bylaws of the strata corporation, or if there are no relevant bylaws, authorized by a resolution of the strata council.

A change that is “significant” can only be done if the change is approved by a resolution passed by a ¾ vote at a general meeting or if immediate change is necessary to ensure safety or prevent significant loss or damage.

This article focuses on how to determine if a change is “significant.”

Confirming the Change is to Common Property or Land that is a Common Asset

The requirement in the Strata Property Act for a change to be approved by a resolution passed by a ¾ vote at a general meeting only applies to common property or land that is a common asset.

Common property is defined as the land and buildings shown on a strata plan that is not part of a strata lot. This means that a change to items that are part of the building may be subject to the ¾ vote requirement.  For example, the replacement of carpet flooring in the lobby of a strata building with tile should be approved by resolution passed by a ¾ vote of the owners at a general meeting because the replacement of carpet with tile would change the appearance of the common property.

If common property is designated as limited common property for the exclusive use of the owners of one or more strata lots it may still be subject to the ¾ vote requirement. For example, if the outdoor area around a strata lot is designated as limited common property and the owner of that strata lot wants to install a fence, the strata corporation cannot permit that work unless approved by a resolution passed by a ¾ vote at a general meeting.

However, the requirement in the Strata Property Act does not apply to non-land common assets owned by the strata corporation. For example, planters in a lobby of a strata building can be changed, rearranged or repurposed by the strata corporation without being approved via a ¾ vote.

 Who Determines if the Change is Significant?

As a starting point, the strata council is initially responsible for determining if a proposed change to the common property constitutes a significant change in the use or appearance in the common property.

If a strata council is not confident that it can determine whether a change is significant, the best practice is to ‘err on the side of caution’ and put a resolution before the owners at a general meeting regarding the proposed change.

It is important that strata council members and owners recognize that if there is a dispute about whether a change is significant that it is the Civil Resolution Tribunal that has the jurisdiction to resolve the issue.

 What makes a change significant?

The meaning of ‘significant’ has been considered by the courts frequently.

The courts have stated that there are both subjective and objective indicators for determining what is a significant change in use and appearance:

• A change is more significant based on its:
  1. Visibility or non-visibility to residents
  2. Visibility or non-visibility to non-residents
• Whether the change affects:
  1. the use or enjoyment of a lot or a number of lots, or
  2. an existing benefit of a lot or lots;
• if there is a direct interference or disruption as a result of the changed use;
• if the change impacts the marketability or value of a lot;
• the number of units in the building, as well as their general use (such as whether the lots are commercial, residential or mixed use) will inform the significance of a change;
• past governance of the strata corporation will inform the significance of a change:
  1. has the strata permitted similar changes in the past?
  2. has the strata followed the Strata Property Act in respect of meetings, minutes, and notices?

Examples where the courts or Civil Resolution Tribunal have found changes in use or appearance of common property to be significant:

• Removal of windows
• Replacement of hallway carpet with carpet tiles
• Change in paint colour of hallway trim and strata lot entry doors
• Installation of a free-standing gazebo, sunshade or patio cover

Examples where the courts or Civil Resolution Tribunal have found changes in use or appearance of common property to be not significant:

• The decoration of common property with plants and shrubbery that can be moved, even when the shrubbery partially obstructed views from the windows of strata lots
• The change of material of storage lockers from wood to wire

The consequences of making an unapproved change

Generally, when strata corporations have permitted a significant change in the use or appearance of the common property without first securing the required ¾ owner approval, the courts and Civil Resolution Tribunal have ordered strata corporation to propose a ¾ vote resolution approving of the significant change.

If the resolution is not approved by ¾ vote, the strata corporation is then responsible for restoring the common property to its state before the significant change was made.

Takeaways

Before the strata corporation takes any action that involves a change in the use or appearance of the common property, the strata council should determine if the change is significant.

The strata council should consider:

• the nature of the change, including its permanence,
• the common property or asset being changed, and
• the strata corporation’s past practices.

The strata council should consider getting owner approval for a change if it determines that the contemplated change in use or appearance is likely to be significant.