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B.C. woman wins right to continue using parking stall that strata says doesn't exist

An underground parking area is seen in this undated stock image. (Shutterstock.com) An underground parking area is seen in this undated stock image. (Shutterstock.com)

B.C.'s Civil Resolution Tribunal has ordered a Burnaby strata corporation to allow the owner of one of its units to continue parking in the parking stall she has used for more than a decade, even though the strata claims such a stall does not exist.

Elsie Yuen Ching Chan took her case to the CRT after the strata declined to designate her parking space as "limited common property" associated with her unit at a hearing last year.

Chan told the tribunal she had parked in "Stall 4" of the building's underground parkade from 2006, when she purchased her unit, until 2019, when the strata sent her a letter indicating that she had to stop parking there because there was no parking stall associated with her unit.

Tribunal member Leah Volkers, in a decision issued and posted online Tuesday, noted that the strata's letter did not provide any further explanation for why Chan was no longer allowed to park in Stall 4. 

Chan has been renting a parking stall from another owner in the building ever since, according to the decision.

'AN OBVIOUS PARKING SPACE,' NOT A WALKWAY

The strata provided a little more explanation in its submissions to the tribunal, which argued that there is no Stall 4 on the strata plan, and that the space Chan had been parking in was actually a common property walkway leading to the building's storage room.

The need for other owners to be able to access the storage room was the strata's "primary argument" for its decision to stop allowing Chan to park there, Volkers wrote.

The tribunal member was unmoved by either of these arguments, noting early in her decision that a parking stall clearly exists in the space.

"The strata plan shows 33 (limited common property) parking stalls in the strata’s parkade, numbered 1-3 and 5-34, respectively," the decision reads.

"Although not specifically identified as a stall on the strata plan, a photograph shows what I find is an obvious parking stall space between Stall 3 and Stall 5 without a stall number, and a door offset to one side at the end of the stall. I find this stall space is the area both parties refer to as Stall 4. For clarity, I will refer to this area as Stall 4 throughout this decision, even though the strata says Stall 4 does not exist."

STRATA MUST GRANT PARKING PERMISSION

While it is not limited common property associated with Chan's condo, Stall 4 is a parking space on the strata's common property, Volkers concluded.

Moreover, Chan submitted evidence showing the strata had given her permission to park in Stall 4 in 2007, shortly after she moved into her unit.

According to the decision, under B.C.'s Strata Property Act, stratas may grant their members permission to exclusively use a common property parking space for up to a year, after which point such permission must be renewed.

While the strata never explicitly renewed its permission for Chan to park in Stall 4, Volkers concluded that it had effectively done so by allowing her to continue parking there for roughly 12 years.

Largely because of this fact, the tribunal member concluded that Chan had an "objectively reasonable" expectation that she was entitled to use Stall 4, and the strata's sudden, unexplained revocation of that entitlement was "significantly unfair" to her.

Chan asked the CRT to declare that Stall 4 is limited common property for the use of her strata lot, but Volkers declined to make such a declaration, because doing so would restrict access to the storage room.

"If Stall 4 is designated as (limited common property) for (Chan's unit's) exclusive use, other owners are not entitled to use it, even if they are only doing so to access the storage door," the decision reads. "Therefore, I find ordering the strata to designate Stall 4 as LCP for (Chan's unit) is not an appropriate remedy."

Instead, the tribunal member ordered the strata to grant Chan exclusive use of Stall 4 – which will remain a common property parking stall – until she sells her strata lot, at which point the permission will expire.

Volkers also imposed the condition that Chan must always leave two metres of space between her vehicle and the storage door.

Because Chan was the successful party in the case, the tribunal member ordered the strata to pay her $225 to reimburse her CRT fees. 

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