The Lagoons: Court rules owner can keep garden shed

Owner of leaky rotten condo wins court battle to keep garden shed on patio


Buchbinder v. Strata Plan VR2096, 1992 CanLII 5957 (BC C.A.)

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Parallel citations:65 B.C.L.R. (2d) 325
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Court of Appeal for British Columbia

Buchbinder v. Strata Plan VR2096

Date: 1992-04-07

Charles F. Willms, for appellant.

William E. Knutson, for respondents.

(Doc. Vancouver CA012753)

April 7, 1992. The judgment of the court was delivered by

[1]               Proudfoot J.A.:– This is an appeal from a decision pronounced July 5, 1990 dismissing the petition of the appellant without giving reasons.

The Facts

[2]               The appellant, through a company known as Inzan Inc., of which she is the sole shareholder, purchased a strata unit at 1559 Mariner’s Walk, Vancouver, British Columbia, Strata Plan VR2096. The purchase was made in March 1988. The appellant has resided in the unit from the date of purchase. The unit was transferred to the appellant by the company after purchase by her on March 20, 1990.

[3]               On April 11, 1988 at the annual general meeting of the strata corporation, a by-law was passed effecting changes to the exterior of the complex. It was called the “Building Exterior By-law” and read in part:

No visible changes to the building’s exterior are permitted. These changes include but are not limited to the following: any change which requires approval from the City of Vancouver; changes to the colouring and/or finish of the building’s exterior; any additions or deletions of a permanent or semi-permanent nature; enclosures of common and/or limited common property and awnings or canopies. (emphasis added)

[4]               Strata lot owners would be given notice if the by-law had not been complied with and would have to remove the offending structure within 30 days after notice. A penalty would be imposed for non-compliance. The by-law applied to any changes made after December 14, 1987.

[5]               In March 1990 the appellant erected an aluminium garden shed on a patio area outside her residence at 1559 Mariner’s Walk. The appellant concedes in her factum, para. 2, that the area where the shed was erected is “limited common property.” There is disagreement between the parties as to whether the shed is fixed or free-standing. The respondent takes the position the shed was bolted down to the appellant’s patio and against an exterior wall and stairway. The appellant argues there was no admissible evidence to support the respondents’ position that it is attached.

[6]               The only evidence available relating to this aspect is found in an affidavit filed by Elizabeth Barnes, dated June 26, 1990, where she states:

4. I am informed by Ron Jaworski and do verily believe that Mr. Jaworski attended at the subject property in April 1990 to inspect the aluminium shed and noted that it had been bolted down to the patio.

This hearsay evidence is dealt with in a supplementary affidavit of Zenna Buchbinder, dated July 4, 1990, with the following reply:

5. The garden unit in question is a chattel and not a fixture or any kind of change to the building exterior, I have not made any changes to the exterior of the building nor have I added any fixture to the common or limited common property.

[7]               The matter is also referred to in para. 2 of the appellant’s reply factum in the following terms:

2 … there was no admissible evidence before the Chambers Judge that the garden shed was bolted down to the Appellant’s patio. In fact, the garden shed was not bolted to the patio or the building.

[8]               In April 1990 the appellant was notified by the strata council that the shed was erected in contravention of the by-law and would have to be removed.

[9]               The appellant filed a petition seeking several declarations. However, on this appeal the only issue pursued is whether or not the chambers judge erred in ruling that the garden shed breached the building exterior by-law. In her petition, she sought a “declaration that the by-law does not cover the garden shed.”

[10]           Appellant’s counsel argues that the plain and ordinary language of the by-law is the proper construction that the court should place on its meaning and that a free-standing structure does not fall within the by-law and there is, therefore, no breach. He relies on the rules of statutory interpretation as enunciated in the case of Great Western Railway Co. v. Carpalla United China Clay Co., [1909] 1 Ch. 218 (C.A.), at p. 236:

A written instrument must be “construed according to its sense and meaning, as collected in the first place from the terms used in it, which terms are themselves to be understood in their plain, ordinary, and popular sense …

[11]           Respondents’ counsel argues that the interpretation cannot be so constrained but must be viewed as well within the entire circumstances, including the purpose for the initial introduction of the by-law, as stated in the Leckie affidavit, “to maintain and preserve the exterior appearance and landscaping of the Lagoon complex.”

[12]           To support that argument, respondents’ counsel cites the case of Fairwood Greens Homeowners Assn. Inc. v. Young, 26 Wash. App. 758, 614 P.R. 2d 219 (1980). In my view, that case does not assist the respondent. Dore J. makes these comments (at p. 223 P.R.):

“… Restrictions being in derogation of the common law right to use land for all lawful purposes will not be extended by implication to include any use not clearly expressed, Burton v. Douglas County, supra, nor will they be aided or extended by judicial construction, Gwinn v. Clearer, supra; Granger v. Boulls, 21 Wash. 2d 597, 152 P. 2d 325 (1944) …”

[13]           It would seem to me that a more convincing argument can be made for the appellant’s position that the by-law cannot be invoked to specifically forbid strata owners from assembling garden sheds on a patio in that there is no mention of garden sheds within the by-law.

[14]           Respondents’ counsel then asks the court to examine the purpose of the by-law. The minutes of the annual general meeting of April 11th, 1988, recorded under heading 9.2 “Changes to Exterior of Building Bylaw” state as follows:

The main “draw” to the lagoons was the design. This by-law would prevent its unnecessary change.

This purpose was referred to earlier when dealing with the Leckie affidavit. Here, the respondents argue that even if the by-law does not specifically, or generally, prevent the appellant from erecting the garden shed, the principle of community can be applied. The case of Metropolitan Toronto Condominium Corp. No. 702 v. Sonshine (1989), 8 R.P.R. (2d) 183 (Ont. Dist. Ct.), is relied on to support that proposition. In the Metropolitan case, an owner, in contravention of a by-law, affixed a canopy to the exterior wall of his unit. The by-law provided a method for owners to obtain their canopy if a sufficient number of owners could be convinced the canopy was an acceptable amenity. Haley D.C.J. made these comments about the principle of community (at p. 187):

One has to keep in mind that condominium living works on a principle of community, and that such decisions affecting the common elements must reflect community concerns and not the wishes of particular unit owners. I do not think this is a question of whether the rule is reasonable.

[15]           This is not analogous to the situation in the case at bar. The principle of community living has only been applied where there has been a clear infraction of a condominium by-law. The argument advanced is that when people join a condominium development they agree to abide by the declaration of community living. In the case at bar, a garden shed being placed on a patio was not specifically prohibited by the by-law. The intention may have been to maintain the integrity of the complex (the aesthetics), however, it would be unreasonable to conclude that, based on the principle of community living, condominium owners should assume they are not entitled to place any object on their patios. The respondent, in my view, does not advance a convincing argument on the breach of the principle of community living unless the appellant has been found to be in contravention of a specific by-law.

[16]           If that principle exists, and has application in the case at bar, it must still be ascertained where the appellant was in breach of the “no change to building exterior” by-law. The by-law prohibition refers to “building’s exterior.” “Exterior” is defined in the Shorter Oxford English Dictionary, 3rd ed. (1978), as:

Outer; pertaining to or connected with the outside; visible on the outside.

[17]           A question can be posed, does this merely include the building walls or does it extend to cover the patio area where the garden shed was placed?

[18]           In the City of New Orleans v. Impastato, 3 S.O. 2d 559 (La. Sup. Ct., 1941), alterations were made to the rear of a building. The court states (at p. 561):

The word “exterior”, as applied to a building, clearly means all of the outer surfaces thereof as distinguished from its interior or the portion enclosed by the outer surfaces.

[19]           In my view, the patio is not incorporated within the definition of building exterior. It is not part of the outer walls. The building exterior could only refer to the walls as the word “exterior” modifies building and does not extend to cover a patio adjacent to that building. Accordingly, it is not a contravention of the by-law to erect a storage shed and place it on the patio. The situation would be considerably altered if the shed were attached to the building specifically to a staircase or a wall.

[20]           The next consideration involves the word “changes.” I refer specifically to the words “additions … of a permanent or semi-permanent nature.” Respondents’ counsel argues that this shed is an addition. That argument cannot succeed. There is no evidence that supports the proposition that the shed is attached to anything, it is a free-standing structure.

[21]           Although Re Blagrave’s Settled Estates, [1903] 1 Ch. 560 (C.A.), has a different fact pattern it nevertheless provides some useful comments when dealing with additions to property. Collins M.R. said (at p. 563):

Mr. Dibdin does not, and cannot, contend that something added to the building which is not attached to it, such as furniture and loose chattels, can be said to be an addition to the building. But why not, if his main argument is correct? The plant is not any more than the furniture an addition of like to like, but is merely something that adds to the amenities of the building. Into what categories are you to divide the additions? You can only get three gradations – namely, loose chattels which are not attached at all, fixtures which are attached in a certain sense, and actual structural additions. Which of those is meant? It seems to me that it would be very difficult to divide off any possible alternative short of an actual structural addition. Primâ facie it seems to me that the addition meant by the section is a structural addition to the building, and that it is not satisfied by putting wires into a building or putting an engine into an engine-house. (emphasis added)

I adopt those words. This shed is not an addition of a permanent or semi-permanent nature within the wording of the by-law.

[22]           Finally, is this shed “an enclosure of common or limited property?”

[23]           If it is, the respondent argues it would be prohibited under this by-law. While it can be argued that the shed encloses the portion covered by the shed, it is stretching logic well beyond the reasonable to conclude that this shed is an enclosure of the common or limited property. That argument cannot succeed.

[24]           Respondents’ counsel presents one further argument referred to in para. 14 of respondents’ factum:

The Appellant at no time had the permission of the Respondent to erect the shed, and had been informed it was contrary to the by-law.

The case of Strata Plan No. 51 v. Davies (May 17, 1988), Doc. Duncan 2134 (S.C.), [1988] B.C.W.L.D. 2778, is cited in support of this argument. The by-law in the Davies case required the “approval of the Strata Corporation” in order to “place or park anything on the common property.” In the case at bar, approval was not required to make use of a garden shed on limited common property. That argument cannot succeed on this basis.

[25]           In summary, this garden shed does not fall within the specific prohibitions of the by-law. It is not a change to the building’s exterior and is not an addition to or an enclosure of the limited common property. To give such a broad interpretation to the by-law would make matters even more difficult for condominium owners trying to interpret ambiguous and generalizing by-laws. If the strata council wants to prohibit garden sheds, or similar free-standing structures, they can easily adopt such a course of action.

[26]           Accordingly, the appeal is allowed.

Appeal allowed.