Date Issued: July 31, 2024

File: SC-2023-004945

Type: Small Claims

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan LMS1799 v. The Owners, Strata Plan LMS1800, 2024 BCCRT 737

Between:

The Owners, Strata Plan LMS1799

Applicant

And:

The Owners, Strata Plan LMS1800

Respondent

REASONS FOR DECISION
Tribunal Member:	Alison Wake

INTRODUCTION

1.      This dispute is about maintenance of a shared easement between two neighbouring properties. The applicant, The Owners, Strata Plan LMS1799, says the respondent, The Owners, Strata Plan LMS1800, has failed to maintain the easement walkway as required by the parties’ easement agreement. The applicant asks for an order that the respondent remove a magnolia tree that it says is causing a safety hazard, and compensate it for expenses including signage and rat control measures. The applicant values its claims at $5,000.

2.      The respondent says that it has complied with the easement agreement. It denies that the tree is hazardous to users of the easement walkway or that it has created a rat infestation. The respondent says the applicant’s claims should be dismissed.

3.      Both parties to this dispute are strata corporations. The Civil Resolution Tribunal (CRT) rules require a strata corporation to be represented by an authorized strata council member. Here, each strata corporation consists of two strata lots, both of which are owned by one individual. Under the Standard Bylaws to the Strata Property Act (SPA), which undisputedly apply to both parties, if a strata plan has fewer than four strata lots then all the owners are on the council. So, I accept that the individual owners of each strata corporation’s strata lots are strata council members and are authorized to represent the respective strata corporations in this dispute.

JURISDICTION AND PROCEDURE

4.      These are the CRT’s formal written reasons. The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). CRTA section 2 says that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly.

5.      CRTA section 39 says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, neither party requested an oral hearing, and I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Considering the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I decided to hear this dispute through written submissions.

6.      CRTA section 42 says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in court.

SPA application

7.      The applicant filed this dispute in the CRT’s small claims jurisdiction under CRTA section 118. However, in submissions, the applicant relies on certain SPA provisions and bylaws, such as a strata’s responsibility to repair and maintain common assets. It refers to the CRT’s jurisdiction over strata property matters, which is set out in CRTA section 121.

8.      The respondent says that although the parties are both strata corporations, this dispute does not fall within the CRT’s strata property jurisdiction because it is not a dispute between a strata corporation and an owner or tenant of that strata corporation.

9.      I find that a strata corporation’s obligations under the SPA are owed to that strata’s owners and tenants, not to neighbouring properties. While I agree with the applicant’s submission that the fact that both parties are separate strata corporations does not preclude the respondent’s responsibilities under the SPA, I find the applicant does not have standing, or legal authority, to enforce the SPA against a different strata corporation. So, I have not addressed the applicant’s arguments about the SPA’s application in this decision.

Fence repair

10.   In submissions, the applicant asks for an order that the respondent pay for 2/3 of the replacement cost to install a new fence in the easement area. The respondent argues that this claim was not included in the applicant’s Dispute Notice.

11.   The applicant says that its Dispute Notice makes general claims about easement maintenance, which includes the fence. The applicant says that it had to shorten its claim description to fit within the Dispute Notice’s character limits.

12.   I find the applicant’s fence claim is not properly before me. The Dispute Notice’s purpose is to define the issues in the dispute, and to provide notice to the respondent about the claims against it and the remedies sought. The applicant’s Dispute Notice specifically addresses the magnolia tree and the alleged rat infestation. It does not make a general claim for easement maintenance, and does not mention the fence.

13.   CRT rule 1.19(3) says that the Dispute Notice will only be amended after the dispute has entered the CRT decision process in extraordinary circumstances. I find there are no extraordinary circumstances here that would justify adding new claims or remedies at this late stage of the CRT process.

14.   Finally, there is no suggestion that the applicant has already paid for a fence replacement. So, I find the applicant’s request for an order that the respondent pay for 2/3 of a replacement fence is a request for an injunctive order, which is beyond the CRT’s small claims jurisdiction in any event. CRTA section 118 only permits injunctive relief in limited circumstances, such as recovery of personal property or specific performance of an agreement relating to personal property or services, which I find do not apply to the fence claim. So, I decline to address the applicant’s arguments about the fence repair in this decision.

ISSUE

15.   The issue in this dispute is whether the respondent has breached the parties’ easement agreement, and if so, whether the applicant is entitled to its claimed remedies.

EVIDENCE AND ANALYSIS

16.   In this civil proceeding, the applicant must prove its claims on a balance of probabilities, meaning more likely than not. While I have considered all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

17.   The background facts are undisputed. The parties own neighbouring properties with a shared walkway between them. A reciprocal easement over the walkway area is registered against both properties.

18.   The land’s developer entered into an easement agreement as both Grantor and Grantee of the easement. The agreement allows the properties’ owners or occupiers to use the walkway to enter and exit the properties. It is binding on the original parties’ “heirs, executors, administrators, successors and assigns” who have any right, title, or interest in the lots. There is no dispute that the easement agreement applies to the parties to this dispute as the current lot owners.

19.   Clause 5 of the easement agreement says that each party will “maintain in good repair and replace when necessary” the surface of its respective easement area. If either party fails to comply with the agreement’s terms, the other party is entitled to take steps to remedy that failure, and any expenses they incur must be paid by the party who failed to comply.

20.   There is undisputedly a magnolia tree on the respondent’s property, with roots that pass next to or under the easement walkway. The applicant says that the tree’s roots are affecting the walkway and creating a tripping hazard, as well as clogging gutters and risking damage to the applicant’s foundation and drainage.

21.   The applicant says that the respondent should pay for the tree or its roots to be removed, and also reimburse it for “uneven payment” signs which it purchased to place near the walkway. Finally, the applicant says that the tree has created a rat infestation in the easement, and that the respondent should reimburse it for rat control expenses.

22.   The applicant provided screenshots of various websites which say that magnolia tree roots can spread and cause damage to paved surfaces. I place no weight on these screenshots, as their authors are not identified and they do not address the specific tree at issue in this dispute.

23.   Both parties also submitted arborist’s reports about the magnolia tree and its impact on the walkway. The respondent submitted a May 19, 2023 report prepared by Kurt Amundson of Westside Tree Solutions. In the report, Kurt Amundson says that the tree’s structural roots have begun to “heave” the concrete walkway by approximately one inch. They say that the heaving is “minimal” and does not represent a hazard to the walkway’s users, and that they do not expect that the heaving will “develop in any material way in the near future.”

24.   The report says that potential impacts to the applicant’s garage foundation and patio drain can be addressed by pruning the tree’s roots and installing a root barrier, but that root pruning to address the walkway heaving would be too invasive and would be detrimental to the tree’s health and stability. The report concludes that while most of the applicant’s concerns can be addressed through root and branch pruning, “removing the tree is the only viable option towards the goal of restoring and maintaining the integrity of the easement to the neighbour’s standards.”

25.   The applicant submitted a March 9, 2024 report prepared by John Monk of Outlook Arborist Services. In this report, John Monk says that the walkway has “lifted” and that it may crack in the future. The report says that removing the tree is a “better solution”, but that if the tree is not removed, the roots should be cut and a root barrier installed. They say that with this second option, it is very likely that the tree will survive with very little impact.

26.   John Monk’s report says that municipalities use a threshold of 2 centimeters of displacement as enough to require repair to a sidewalk. The applicant says that because Kurt Amundson’s report estimates the heaving at one inch, which is approximately 2.5 centimeters, the tree roots must be removed. I am not persuaded by this argument, for several reasons. First, John Monk provided no examples or references in support of this alleged municipal threshold. Even if they had, I find the municipal standard for sidewalks is not necessarily applicable to private, residential walkways. Finally, Kurt Amundson’s estimate of the amount of heaving is approximate. Neither Kurt Amundson nor John Monk provided a precise measurement of the heaving.

27.   The respondent argues that John Monk’s report should be given less weight than Kurt Amundson’s, because John Monk undisputedly did not inspect the tree or easement in person. The applicant says that John Monk did not need to make a site visit because another company, Country Tree Services, visited the site and provided necessary photos and descriptions. However, John Monk does not say this in their report. Instead, John Monk states in their report that they relied on Kurt Amundson’s report and measurements. I agree that John Monk’s report should be given less weight given they did not inspect the tree and easement in person.

28.   Overall, I accept Kurt Amundson’s conclusion that the heaving is minimal at this time and is not hazardous to walkway users. This is consistent with close-up photographs provided by the respondent, which show only a very small lift between two concrete slabs in one area of the walkway. The applicant did not provide any other photographs or measurements showing the allegedly hazardous heaving, or any other expert opinion evidence that it is dangerous.

29.   While Kurt Amundson’s report says that removing the tree is the only viable option to maintain the easement “to the neighbour’s standards”, the easement agreement only requires that the easement area be maintained “in good repair” and replaced “when necessary”. This does not impose a standard of perfection. Rather, I find it requires the parties to act reasonably diligently in performing their easement maintenance obligations.

30.   Overall, I find the applicant has not established that the walkway is not currently in good repair. So, I dismiss the applicant’s claims about the walkway.

31.   I note that I would not have ordered the respondent to have the tree or roots removed in any event. As the respondent notes, this type of remedy is injunctive and is beyond the CRT’s small claims jurisdiction, as discussed above. So, I find the applicant’s claim would be limited to expenses it has already incurred, such as the claimed signage expenses, in any case.

32.   Finally, I find the applicant has not established that the respondent has created or contributed to a rat infestation in the easement area. The applicant submitted various videos showing rats in traps in the easement area, and on the front porch of one of its strata lots. The applicant says that debris from the magnolia tree attracts the rats into the easement area, and that rats also use the tree’s branches to move between the parties’ properties.

33.   The respondent says that there is no evidence that the magnolia tree caused a rat infestation. I agree. I find the mere presence of rats in the easement area does not necessarily constitute an “infestation”, and the applicant has not established that the magnolia tree is attracting rats. While I accept that there are some rats present in the easement area, I agree with the respondent that there is no evidence that this is beyond the standard presence of rats in the parties’ city, or that the respondent has caused or contributed to the rats’ presence. So, I also dismiss this part of the applicant’s claim.

CRT FEES AND EXPENSES

34.   Under CRTA section 49 and the CRT Rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. Here, the applicant was unsuccessful, so I dismiss its claims for CRT fees and dispute-related expenses. The respondent was successful, but did not pay CRT fees or claim dispute-related expenses, so I make no order for them.

 

 

ORDER

35.   I dismiss the applicant’s claims and this dispute.