Fenwick et al v. Parks et al (Strata Plan VIS 2014)

Fenwick et al v. Parks et al (Strata Plan VIS 2014)

Regulation 14.2's 'can be lived in' standard requires inclusion of basement areas capable of habitation even if currently used for storage and requires exclusion of garage areas; because the original schedule was prepared on misleading assumptions and produced an inconsistent and inequitable allocation, the Court...

Source-derived case information.

Citation
2004 BCSC 1132
Parties
Petitioners: Kenneth F. Fenwick et al; Respondents: Wayne E. Parks et al
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
30 August 2004
Procedural Posture
Petition Under Strata Property Act S.246 to Amend Schedule of Unit Entitlement / Chambers Reasons (application Heard Aug 10 11, 2004)
Outcome
Petition granted: Court ordered amendment of the Schedule of Unit Entitlement to accurately reflect habitable area and to exclude garage space; implementation suspended until statutory requirements met and final registration in Land Title Office; no costs awarded (each party bears own costs).
Legal Topics
Unit Entitlement, Habitable Area Definition, Strata Corporation Obligations, Surveyor Determinations, Equitable Apportionment of Common Expenses, Statutory Amendment of Registered Schedules
Source Language
english
Property Law Strata/condominium Law Real Estate Law Administrative Law Unit Entitlement Habitable Area Definition Strata Corporation Obligations Surveyor Determinations +2 more

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Parties

Kenneth F. Fenwick et al

Petitioners

Wayne E. Parks et al

Respondents

Procedural Posture

Petition Under Strata Property Act S.246 to Amend Schedule of Unit Entitlement / Chambers Reasons (application Heard Aug 10 11, 2004)

Legal Issues

  1. 1 Whether the Schedule of Unit Entitlement should be amended under s.246(7)-(8) of the Strata Property Act
  2. 2 Proper interpretation of 'habitable area' in Regulation 14.2 (whether areas that 'can be lived in' must be included)
  3. 3 Whether unit entitlement differences meet regulatory thresholds (Reg.14.13) and whether Court should exercise s.246(8) powers

Ratio Decidendi

Regulation 14.2's 'can be lived in' standard requires inclusion of basement areas capable of habitation even if currently used for storage and requires exclusion of garage areas; because the original schedule was prepared on misleading assumptions and produced an inconsistent and inequitable allocation, the Court ordered the Schedule of Unit Entitlement amended to include all habitable area (including lower levels that can be lived in) and to exclude garages, with implementation deferred until statutory requirements and Land Title registration are satisfied.

Court Disposition

Petition granted: Court ordered amendment of the Schedule of Unit Entitlement to accurately reflect habitable area and to exclude garage space; implementation suspended until statutory requirements met and final registration in Land Title Office; no costs awarded (each party bears own costs).

Orders

  • Order that the Schedule of Unit Entitlement for Strata Plan VIS 2014 be amended in accordance with the Strata Property Act and Regulations to accurately reflect habitable area for each strata lot
  • Order that all garage area be excluded from habitable area calculations