Civil Resolution Tribunal. Indexed as: Wood v. The Owners, Strata Plan VIS 97, 2017 CRTBC 12. Clyde Wood APPLICANT

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1 Date Issued: March 6, 2017 File: ST Civil Resolution Tribunal Indexed as: Wood v. The Owners, Strata Plan VIS 97, 2017 CRTBC 12 B E T W E E N : Clyde Wood APPLICANT A ND: The Owners, Strata Plan VIS 97 RESPONDENT REASONS FOR DECISION Tribunal Member: Shelley Lopez, Vice Chair INTRODUCTION 1) The applicant owner s dispute is about the strata council s February 2016 removal of three trees or shrubs (plantings) from the common property of The Owners, Strata Plan VIS 97 (the strata).

2 2) The applicant submits the removal of the plantings was a significant change in the use and appearance of common property. As such, the applicant submits the plantings removal needed to be approved by a resolution passed by a ¾ vote at an annual or special general meeting, as set out under section 71 of the Strata Property Act SBC 1998 c. 43 (SPA). The applicant also submits that in removing the trees the strata council acted in bad faith and not in the best interests of the strata, contrary to section 31 of the SPA. JURISDICTION AND PROCEDURE 3) These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims brought under section 3.6 of the Civil Resolution Tribunal Act (Act). The tribunal s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness. It must also recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended. 4) The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, , or a combination of these. 5) I decided to hear this dispute through written submissions because I find there are no significant issues of credibility or other reasons requiring an oral hearing. 6) The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate. ISSUES 7) The issues in this dispute are: a. Did the strata require a ¾ vote resolution to be passed prior to removing the plantings from the strata s common property in February 2016? 2

3 b. Did the strata council act in bad faith in removing the plantings in February 2016? c. Should the strata be required to plant replacement trees? d. Should the strata be required to make a $5,000 donation in the owner s name to Adult & Teen Challenge? e. Is the owner entitled to reimbursement of the $225 in fees paid to the tribunal? BACKGROUND AND EVIDENCE 8) The applicant, Clyde Wood (the owner), has owned a strata lot in the strata since The 37-unit residential strata complex is beside a hotel. The oceanfront strata property slopes downwards, both towards the ocean and towards the hotel. There are basically two rows of units on each floor, one on the north or hotel side, and one on the south side. 9) The owner s corner strata lot (unit 504 or SL25) is on the strata s fifth floor. From his balcony, the owner has views of the ocean to the east, and to the north, the strata s carport and then the hotel. 10) Among other plants, the three plantings, a maple tree and two other trees or shrubs, were located on an 8 to 10 wide strip of common property. This area (the strip), sat between the hotel s retaining wall and the strata s carport. The owner s view of the plantings in the strip is largely blocked by the carport roof, except for branches that grow higher than the carport roof. Beyond the strip and northeast towards the ocean, the owner can see the hotel s lawn and the steam coming out of the hotel s boiler. 11) On February 4, 2016 the strata council removed the three plantings from the strip. The central question is whether their removal was a significant change in the use and appearance of common property. 12) It is undisputed that the strata has a duty to repair and maintain the strip. It is also undisputed that the strata property has a beautiful and varied garden with more than 30 3

4 trees and many large flowering shrubs. The adjacent hotel was demolished around 2007 and over the next few years rebuilt into a much larger hotel. It also has extensive landscaping. 13) In February 2007, as set out in a Note to File following a meeting at the hotel, the strata council and the hotel agreed that certain trees on the strip and on hotel property should be removed due to the hotel construction. Included in the 2007 removals were a birch tree and mountain ash tree, both on hotel property. There is also an arborist s February 2007 proposal to the strata council to prune or top a failing weeping willow, which was apparently also removed from the strip around that time. After watching the owner s video, I accept these trees were important to him. 14) In its submissions, the strata refers to the February 2007 proposal as a motion that shows tree removal was typically dealt with by council, rather than by a vote of the strata. I note an April 4, from the owner to the strata s property manager, where the owner described the maple tree as a replacement for the birch that the strata council at the time negotiated with the hotel to replace. 15) In his submissions, the applicant owner states we voted at a Council meeting in to have the hotel replace the removed trees with a silver birch, mountain ash, and a weeping willow. However, I have no other evidence before me of a vote in , or any other documents from that timeframe, regarding types of replacement trees. This is relevant because in this dispute the owner now wants the strata to replace the plantings it removed in February 2016 with a silver birch, mountain ash, and a weeping willow, based on that vote. 16) The strata says that the strip was replanted in 2013 by the hotel with some small hedgetype plants, as well as the plantings now at issue: two shrubs and a 17 maple tree. The strata says the hotel did this as a thank you for the construction disruption, although the strata did not direct the hotel to do it and there was no vote by the owners. In his video, the owner said the hotel s replacement choices resulted from a falling out between the hotel representative and the strata council. Nothing turns on what motivated the hotel s choices for the plantings, but I mention it as evidence of how past 4

5 decision-making occurred. The strata also says that most of the other plants in the strip were placed by its own gardeners, for a few reasons: to hide the chain-link fence, to keep maintenance to a minimum, and to protect the views of those owners whose views suffered when the new larger hotel was built. 17) The owner says the three 2013 plantings at issue were a 25 maple tree and two 14 to 15 mountain ash trees, and all were improperly removed by the strata in February The owner says the three plantings were healthy and grew very well in the strip, although I do not have any arborist or other expert evidence about their current or expected future health. The owner says that the carport and fence are about 10 high and the growth of the three plantings extended above the carport. The owner submits that because two or three (unidentified) council members wanted to improve their ocean view, the three plantings were cut down in violation of sections 31 and 71 of the SPA. 18) As for the section 31 violation, the owner says the strata council failed to act honestly and in good faith with a view to the best interests of the strata. He says that because there had been prior votes about removals of fir and cypress trees, council knew a ¾ vote resolution was required to be passed before removing trees in However, I do not have any other evidence before me about any fir tree removal voting or why and when it occurred. 19) The strata submits that in 2007 the strata council considered the removal of a large cypress tree, but ultimately decided it would be kept. The owner states in his video that the we voted to keep the cypress, after the council wanted it removed. Apart from the owner s comment, I have no evidence of a ¾ vote resolution being passed to keep the cypress. In the owner s video taken from his balcony, the owner shows the cypress at the far end of the strip, and talks about the silver birch and mountain ash, removed in 2007, that had been beside it closer to his unit. The owner says the cypress trunk is 24 to 30 in diameter. When I watch the video, the cypress appears to me to be almost 70 tall, rising high above the 10 carport, with a wide spread of branches. 20) In the video, the owner also shows the area of the strip, behind the carport, where the plantings had been located. This area is in front of his balcony to the north, and around 5

6 where he said the weeping willow was earlier removed. The hotel boiler s steam is located more east towards the ocean, rising from almost ground level. The owner says that since the removal of the plantings, the condensation on the windows of SL25 from the boiler s steam has increased. He also says the removal of the plantings have negatively affected his privacy, view, and property value, a loss he estimates at $35, ) The strata submits all units on the owner s side of the strata have a view of the steam from the hotel s boiler, and no other units have complained about steamed windows after the tree removal. Photos showing the ground level boiler and its steam appear to be at least 50 feet away from SL25, although I do note the grade slopes downwards. The strata also submits property values have gone up since the trees were removed. I have no evidence before me as to actual property values, either before or after the tree removal. The strata further submits that all units on the north side of the strata are similarly affected by the removal of the plantings, to the extent there is any loss of privacy or enjoyment. 22) The strata describes the rationale for the February 4, 2016 plantings removal as follows. The strata removed one maple tree from common property, along with two shrubs that were branching out under a carport roof. The deciduous shrubs were removed as part of normal maintenance. Council did not view the maple tree s removal as a significant change in the appearance of common property. 23) Without providing any expert evidence to the tribunal, the strata s reasons for the maple tree s removal were: a. It dropped leaves on the adjacent carport roof and onto the public walkway of the hotel, thus requiring continued maintenance for both the strata and hotel. b. The tree s location in the narrow and shallow band of soil between the concrete retaining wall and the strata s asphalt parking area was potentially dangerous as the soil in the area was insufficient to sustain such a large growing tree and its roots. 6

7 c. The tree s location was close to the strata s underground drainage systems, where the strata had previous problems with tree roots. d. The strata chose to have the maple tree removed before it became invasive and a safety hazard. 24) On January 14, 2016, the strata council s representative wrote to another council member who was also on the gardening committee. The council member stated that several owners had asked for the removal of the maple tree, because it obstructed their view and also because the leaves caused problems. The tree was not a protected species and was not large enough to require a permit. The strata had not requested or been consulted before the hotel planted the maple tree in the strip in The council member wrote it was a great idea to replace the maple tree with pacific blue evergreen shrubs in order to give colour and hide the fence, and she asked for the maple tree to be removed before spring. This is the only written correspondence about the maple tree s removal, before it was removed on February 4, ) On February 24, 2016, the strata, through its property manager, ed the owner and said that council had discussions with its gardener and the gardening committee about the trees and potential issues that could arise. The stated the council felt the choice of trees put in as replacements should not have been maples but evergreens and shrubs. The also stated that council s original plan was to cut down the one on the right and trim the remaining two to fence height. The strata s gardener however had concerns about the maple and suggested removing all three trees and replacing with evergreen shrubs. The strata stated that the centre and left trees had previously been cut at the base causing them to be multi-stemmed, and thus shrubs. The one on the right had a circumference of less than 12. The strata repeated the concerns about dropping maple leaves, especially as the tree matured. The strata also stated that replacing with low maintenance evergreen shrubs would have a positive effect on the area, and from this information the decision was made to remove and replace them. 26) On May 2, 2016, the strata s property manager ed the owner and said he did not know about the tree removal until after it happened. The property manager stated that 7

8 cutting down trees should have been put to the owners as it is a change to common property. The manager quoted the minutes from an April 6, 2016 council meeting where the strata council noted that there were no records showing an agreement with the developer about the type of trees that should be planted to replace the ones cut down in The minutes again document the concerns about falling maple tree leaves damaging the carport roof, along with other potential issues. The minutes state council acted in good faith, and that it did not realize at the time of removal that they would need the consent of owners to cut down the trees. 27) The owner provided the tribunal with two photos of the remaining stumps after the plantings were removed in February In each, there is a multi-stemmed base, and the diameter of the cluster appears to be less than 12. The strata says these photos each show the remains of a shrub, with the shrubs about 4 apart, which did not require approval from the owners to remove because it was part of normal landscaping maintenance. Another video from the owner appears to show a tree stump with a single stem, again with an apparent diameter of less than 12. I infer this was the removed maple tree. 28) Photos provided by the strata, taken from the balcony of unit 503 that is just west of the owner s unit 504, show the upper branches of the maple tree as it stood in 2013 and Panorama videos were also provided showing the strata complex and its landscaping, the strip, and the adjacent hotel. It is difficult to determine the maple tree s height from the photos because of the property s downward slope. However, on a balance of probabilities, I estimate the height to be closer to 20, given the distance of the branches visible above the approximately 10 carport roof. The branches did not spread very much, which makes sense for the relatively small diameter of the singlestem stump in the video. I do note these photos show the maple tree without any leaves, and I presume its visibility was greater when it had its leaves. POSITION OF THE PARTIES 29) The applicant owner submits that the removal of the plantings on the strip interferes with the peaceful comfort, privacy, and property value of his home. The owner wants the 8

9 tribunal to order the strata to replace the three removed plantings in the strip, with a silver birch tree, mountain ash tree, and a weeping willow tree. 30) The owner also requests that I order the strata to donate $5,000 in his name to Adult & Teen Challenge as a deterrent to the strata acting without proper authority in the future. The owner estimates his loss of enjoyment and property value at $35,000, and says the $5,000 figure is only a fraction of that amount. The owner further requests that I order the strata to pay him $225 for the fees he paid to the tribunal. 31) The respondent strata says that a single small maple tree was removed in February 2016 as part of ongoing preventative maintenance, along with two smaller shrubs. The strata says it acted in good faith and denies that the plantings removal in February 2016 constituted a significant change to the use or appearance of common property. The strata council says it does not have authority to replant trees as requested by the owner. 32) The strata also says that it offered the owner the opportunity to put his request for tree replacement to the owners at the December 9, 2016 annual general meeting. However, the owner preferred to start the tribunal proceedings instead. As such, the strata states it should not have to pay the $225 that the owner paid to the tribunal. Similarly, the strata says it should not be required to make a $5,000 donation in the owner s name. The strata requests that I dismiss the applicant s claims. ANALYSIS Whether the strata required a ¾ vote resolution to be passed prior to removing the plantings from the strata s common property in February ) The strata filed consolidated bylaws with the land title office in Bylaw 10 states the strata must repair and maintain common property that has not been designated as limited common property. It is undisputed that the plantings on the strip clearly sat on common property. 34) Section 71 of the SPA states that the strata must not make a significant change in the use or appearance of common property unless the change is approved by a ¾ vote at 9

10 an annual or special general meeting, or, there are reasonable grounds to believe that immediate change is necessary to ensure safety or prevent significant loss or damage. 35) I find that it is clear on the evidence that there was no ¾ vote taken to approve the February 2016 removal of the plantings, namely the maple tree and the two shrubs in the strip. I find it is also clear that there were no reasonable grounds to believe that immediate removal of the maple tree and shrubs was necessary. While potential future damage was one of the strata s concerns about the maple tree, I find there is no real suggestion that its removal was immediately necessary. I say this given the content and tone in the exchange between council members of January 2016 and from the strata s submissions, summarized above. 36) In some prior cases, the decoration of property with plants and shrubbery did not constitute a significant change to common property (see Reid v. The Owners, Strata Plan LMS 2503, 2001 BCSC 1578, aff d 2003 BCCA 126). However, the Reid case dealt with potted cedar trees and shrubs that could be moved to various locations. In a more recent case, the court concluded that the planting of fixed fruit trees and garden beds amounted to a significant change in the use and appearance of common property (Anthony v. Schnapp, 2016 BCSC 1839). However, in Anthony, the garden beds and fruit trees appropriated a large portion of the common property for the benefit of one of the two owners that made up the strata corporation. 37) While in the case before me I am considering the removal of plantings, rather than the addition of them, I find this case law helpful in terms of the plantings impact on the owners. I find the strata s removal of the plantings must be considered in the overall landscaping of the strata s property. 38) Past decisions have considered the meaning of significant change in the use or appearance of common property. The Anthony decision set out a summary of the relevant guideline criteria: a) A change would be more significant based on its visibility or non-visibility to residents and its visibility or non-visibility towards the general public. 10

11 b) Whether the change to the common property affects the use or enjoyment of a unit or a number of units or an existing benefit of a unit or units. c) Is there a direct interference or disruption as a result of the changed use? d) Does the change impact on the marketability or value of the unit? e) The number of units in the building may be significant along with the general use, such as whether it is commercial, residential or mixed use. f) Consideration should be given as to how the strata corporation has governed itself in the past and what it has allowed. For example, has it permitted similar changes in the past? Has it operated on a consensus basis or has it followed the rules regarding meetings, minutes and notices as provided in the SPA. 39) So, was the removal of the maple tree a significant change in the use or appearance of common property? The strata s property manager s advice to the owner that it was significant is not conclusive, although it appears that advice may have amplified the dispute. 40) First, given the evidence, I am not persuaded that the condensation on SL25`s windows would have become significantly worse due to the plantings removal. I place some weight on the fact that owners of other strata lots similarly situated did not complain about condensation on their windows. Also, in the video clip provided by the owner, it appears the steam is some distance from his unit, and was east of the plantings location. In short, I have difficulty accepting how the maple tree, particularly when it is without its leaves, was a steam buffer as suggested by the owner whose unit sits a level above the carport, on the fifth floor. I say the same of the shorter shrubs that were at most 15 high, according to the owner. I find the plantings removal did not cause a direct interference or disruption. 41) Based on the evidence, I find the removal of the maple tree did not impact the marketability of the owner s strata lot or that of any other units in the strata. 11

12 42) I acknowledge the owner s estimation the maple tree was large and that it was a significant presence that he missed. However, based on the photographic and video evidence before me I find that the maple tree was not particularly significant in relation to the rest of the landscaping in and around the strata property. I find the maple tree s visibility is not overly significant from SL24 or SL25 or from the hotel side, particularly without its leaves, given its placement between the carport and the hotel retaining wall. 43) Further, I consider it significant that landscaping, including tree removal, was largely left to the strata council to decide. The absence of ¾ vote resolutions being approved on the subject, for instance with respect to the weeping willow tree, supports the conclusion the owners and the strata council did not generally consider tree removal to be a significant change to either the use or appearance of common property. Even if there had been a ¾ vote resolution passed to keep the cypress tree, I consider that tree to be distinguishable given its significantly larger size at about 70 tall. 44) What about the two shrubs that were also removed from the strip? Based on all of the evidence, I find that these were two mountain ash trees that had previously been cut back such that they became smaller multi-stemmed trees or shrubs. Nothing here turns on the distinction between the terms tree and shrub. I come to the same conclusions regarding these mountain ash trees as I have above about the maple tree, particularly as they were even smaller in size and less visible. I note that in the 2013 and 2015 photos showing the maple tree from the balcony of SL24, I cannot easily identify these two shrubs. Moreover, clearly the strata was entitled to deal with some amount of landscaping without passing a ¾ vote resolution, and this is not disputed. I find the maple tree and the mountain ash trees fell within that scope. 45) Given my conclusions above, on a balance of probabilities I find the removal of the plantings was not a significant change that required a ¾ vote resolution to be passed by the strata. 12

13 Whether the council acted in bad faith 46) I turn now to the question of whether the strata acted in bad faith in removing the plantings in February I find that on a balance of probabilities there is insufficient evidence that it did so. 47) While I acknowledge the owner s evidence that a strata council representative involved in this dispute had lived in the strata years earlier, I accept the representative s evidence to the effect that she did not formally become involved with council until at least Thus, she was not involved with the decisions in 2007 about tree removal and replacement. 48) The January 2016 letter between council members supports the conclusion that the council representative acted in good faith and in the strata s best interests in considering what she understood to be the relevant issues regarding tree removal. The owner did not dispute the specific concerns raised by the council representative in her submissions on behalf of the strata, other than to offer his lay opinion that the trees in the strip were healthy and grew well. I find there is insufficient evidence to support a conclusion that the council representative or the strata council generally was improperly biased towards the interests of certain council members complaining about their view. 49) On a balance of probabilities, I find that all strata council members acted in good faith in removing the plantings in February I similarly find that it also exercised the care and diligence of a reasonably prudent person in the circumstances. Thus, I find the strata was not in violation of section 31 of the SPA. DECISION 50) Given my conclusions above that the strata did not act improperly in removing the plantings, I find the strata is not required to replant any trees in the strip. Similarly, the strata is not required to make a $5,000 donation in the owner s name. 13

14 51) Nothing in this decision prevents the applicant owner from taking steps under the SPA to ask the owners at a future annual or special general meeting the question of whether and to what extent the strip should be replanted. 52) I find the owner is not entitled to an order that the strata pay him $225 for the fees he paid the tribunal. I say this because he was unsuccessful in this dispute. However, it is also relevant that the strata offered the owner the opportunity to bring the question of replanting to the owners to consider a ¾ vote resolution, and he chose not to do so. ORDER 53) I order that the claims of the applicant are dismissed. Shelley Lopez, Vice Chair 14