Is The Air Space Above A Strata Lot The “Common Property” Of The Strata Corporation?

By Mark Danielson

In Chan v. Owners, Strata Plan VR-151, 2010 BCSC 1725, the Supreme Court of British Columbia considered the ability of a strata corporation to regulate the air space above a strata lot – an issue that had not been considered in the context of the Strata Property Act, S.B.C. 1998, c. 43 (the “SPA”) or its precursor legislation. Chan also demonstrates that purchasers should be wary of assurances of “grandfather protection” excusing compliance with existing bylaws, even when such assurances are made by the strata corporation.

Chan involved a dispute between the owner of a ground floor unit in a high-rise strata building (the “Petitioner”) and certain other owners. The Petitioner’s unit (the “Unit”) had a patio from which a tree stood at about the height of the building. Most owners wanted the tree to conform to a height consistent with the horizontal plane of the Unit’s ceiling (the “Upper Boundary”) to preserve their light and views. The fact that the proposed course would kill the tree was not disputed.

The defendant strata corporation (the “Strata Corporation”) passed a bylaw requiring the owners of ground floor units to ensure that any foliage on their strata lots did not extend beyond the boundaries of their lots (the “Bylaw”).

The Petitioner argued that the enactment of the Bylaw, and its enforcement against her, would be “significantly unfair” within the meaning of section 164 of the SPA because the tree’s intrusion above the Upper Boundary was tolerated since she purchased the Unit in 1990.

The Petitioner also argued that the respective failures by the Strata Corporation and the owners to enforce a previous bylaw respecting foliage and express any concerns about the tree until 2006 precluded them from taking the proposed action.

The Court focused on the issue of whether the Strata Corporation, as the party responsible managing and maintaining its “common property” for the owners’ benefit under the SPA, could regulate the space above the Unit’s patio and Upper Boundary (the “Disputed Space”) on the basis that it was “common property” under the SPA.

The SPA definition of “common property” reads in part:

 “common property” means

that part of the land and buildings shown on a strata plan that is not part of the strata lot,…

The Petitioner argued that the Land Title Act, R.S.B.C. 1996, c. 250 (the “LTA”) provides a comprehensive scheme for the registration of “air space parcels” as interests in land and, as no “air space plan” creating any such parcels was filed in the Land Title Office, there was no defined air space belonging to the Strata Corporation. The Court noted that the relevant strata plan was deposited in the Land Title Office prior to the enactment of Part 9 of the LTA and, in any event, the LTA limits the application of Part 9 to the extent expressly stated in the SPA, which does not provide that Part 9 applies to the relevant provisions.

The Court noted that the strata plan defined a vertical limit to the Unit’s patio space consistent with the Upper Boundary. The Court remarked that, while the Disputed Space did not form part of any strata lot, it was buildable space that could form part of a strata lot if the building was expanded. The Court found that the Disputed Space met the definition of “common property” as land “shown on a strata plan that is not part of a strata lot”.

Chan may have had a different outcome if the strata plan did not define a vertical limit to the Unit’s patio space. Given the inapplicability of Part 9 of the LTA to the relevant provisions, there would be no basis to define the Disputed Space as “common property”, subject to regulation by the Strata Corporation, had a vertical limit not been defined in the strata plan. Purchasers of strata lots with patio space should confirm the air space above their lot is unbounded if such a consideration is important to them.

The Petitioner in Chan was assured by the vendor and realtor upon purchasing the Unit that the tree had “grandfather protection” from existing bylaws. Though it is clear the representations made by the vendor and realtor could not bind the Strata Corporation, the Court noted that had the Strata Corporation made such an assurance, it would not be effective because section 76 of the SPA prevents a strata corporation from granting exclusive use of “common property” to an individual owner for more than one year. Purchasers of strata property should confirm that any assurances of “grandfather protection” do not involve the common property of the strata corporation.