Requests to Alter Property: Ensuring Fairness

Trevor Morley
Jul 3
9 min read

Updated: 5 days ago

WHAT IS THE TEST FOR SIGNIFICANT UNFAIRNESS?

A Strata's conduct is significantly unfair when it is oppressive, meaning burdensome, harsh, wrongful, lacking in probity or fair dealing, or done in bad faith, or when it is unfairly prejudicial, meaning unjust or inequitable (Reid v. Strata Plan LMS 2503 (Owners), 2001 BCSC 1578, paras 9-14). Whether an Owner held a reasonable expectation about how the Strata would act is one relevant factor in that analysis, not a separate, mandatory hurdle (King Day Holdings Ltd. v. The Owners, Strata Plan LMS3851, 2020 BCCA 342). An Owner who believes a Strata's decision meets that standard can ask the Supreme Court, or the Civil Resolution Tribunal, to intervene (s.164(1); CRTA s.123(2)).

A request to alter a Strata Lot or the common property is a setting the Civil Resolution Tribunal frequently applies this test to. We have written about the general test for significant unfairness, and about an Owner's ability to rely on a Strata's prior approval, in other articles. This article looks specifically at how that test plays out when Council approves, refuses, or reverses a decision on an individual Owner's request to alter property.

WHAT MUST COUNCIL CONSIDER BEFORE APPROVING OR REFUSING AN ALTERATION REQUEST?

Council must have a rational, consistently applied basis for its decision before it approves or refuses an Owner's request to alter property. The Standard Bylaws in the Strata Property Act govern a Strata's own Bylaws except to the extent the Strata has filed different ones in the land title office, so what follows describes the Standard Bylaws' framework as a baseline; every Strata should check its own filed Bylaws, since a large number of Stratas have filed Bylaws that depart from this default (Strata Property Act, s.120).

Under the Standard Bylaws, an Owner must obtain the Strata's written approval before making a structural, exterior, or building-system alteration to a Strata Lot, and the Strata must not unreasonably withhold that approval (Standard Bylaw 5).

The Standard Bylaws also require an Owner to obtain the Strata's written approval before altering the common property, including limited common property, but do not attach that same express "not unreasonably withhold" language to an alteration of the common property (Allwest International Equipment Sales Co. Ltd. v. The Owners, Strata Plan LMS4591, 2018 BCCA 187, para 20; Standard Bylaw 6).

It is important to recognize the distinction between these two approvals and what fills the gap the second one leaves. The same asymmetry can also appear in a Strata's own filed Bylaws, not only the Standard Bylaws: in one dispute, a Strata's own filed Bylaws required written approval for an alteration to limited common property but, unlike the Bylaw governing other common-property alterations, contained no equivalent "not unreasonably withhold" language (Wilder et al v. The Owners, Strata Plan BCS 3152, 2019 BCCRT 212). Whether the approval comes from the Standard Bylaws or from a Strata's own filed Bylaws, significant unfairness fills that gap: Council's decision is still reviewable if it is arbitrary, inconsistent with the Strata's own past practice, or defeats an Owner's reasonable reliance, even without a bylaw provision saying so directly (Wilson v. The Owners, Strata Plan NW 526, 2021 BCCRT 302).

It is also important for Council to distinguish this decision from a separate one entirely. Some alterations affect the use or appearance of the common property significantly enough that Council cannot authorize them on its own at all, and the Owners' own authorization by vote is required instead — we have written about when that authorization is required in another article. An alteration request that Council can decide on its own is a narrower decision than one that needs the Owners' authorization, and several of the disputes below turn on which of the two categories the request actually fell into.

WHEN DOES A REFUSAL TO APPROVE AN ALTERATION BECOME SIGNIFICANTLY UNFAIR?

A refusal becomes significantly unfair when Council has no rational basis for it, or applies a standard it has not applied consistently to comparable requests. An Owner asked to replace a solid front door with a glass-insert door was refused on the mistaken premise that a bylaw amendment was required first; the Strata also had no documented specifications for the kind of door proposed, and had already permitted similar glass inserts for other Owners without objection. The refusal was significantly unfair (Wilson v. The Owners, Strata Plan NW 526, 2021 BCCRT 302).

An undocumented or shifting standard produces the same result even without an erroneous legal premise behind it. Owners seeking a patio expansion on limited common property were refused three times in succession, even though at least eight similar extensions had already been approved for other Owners and no prior applicant had ever been assessed against sight lines, drainage, or garden-bed criteria. One member of Council's own stated personal preference against the design, not any Bylaw or documented standard, appeared to drive the refusal, and the tribunal found it significantly unfair (Wilder et al v. The Owners, Strata Plan BCS 3152, 2019 BCCRT 212).

The same pattern recurs with signage. A commercial Owner's request for window signage was refused after the Strata had already approved similar or more prominent signage for other commercial lots, and the Strata could not articulate a consistent rule distinguishing the approved signage from the refused signage. The refusal was significantly unfair (Mogharreban v. The Owners, Strata Plan V.R.1378, 2026 BCCRT 981).

What these three decisions share is not bad faith on Council's part, but an absence of any rational basis that survives comparison to the Strata's own past decisions. A Strata does not need a written policy for every kind of alteration, but once it has approved a comparable request before, refusing a materially similar one afterward requires an actual, articulable reason for the difference.

WHEN DOES REVERSING A PRIOR APPROVAL BECOME SIGNIFICANTLY UNFAIR?

Reversing an approval an Owner has already relied on is a common way a Strata's conduct becomes significantly unfair, and this pattern recurs frequently in alteration disputes specifically. A new Council reversed a prior Council's written approval of river rock and potted plants on the common property, ordering their removal more than a year after the Owner installed them at his own expense, without identifying any new fact or legal basis for the reversal. The tribunal found this significantly unfair; a prior Council's approval remains valid unless it is reversed on a legally sound basis, not simply because a new Council prefers a different outcome (McFadyen v. The Owners, Strata Plan NW 2154, 2022 BCCRT 1191).

The same reasoning applies when the Strata removes what it previously approved, rather than formally reversing the approval on paper. A Strata removed a dividing fence and patio extension it had earlier approved, without consulting the Owner, while continuing to maintain similar structures at other units. And a Strata sought to remove a balcony enclosure a Council had approved in 2002, relying on an AGM ¾ vote that the tribunal gave little weight, because the Owners who voted had been told incorrectly that keeping the enclosure required unanimous consent. Both reversals were significantly unfair (Kazakoff v. The Owners, Strata Plan KAS 880, 2018 BCCRT 12; Bremner v. The Owners, Strata Plan K815, 2026 BCCRT 310).

An approval does not need to come from Council itself to found reasonable reliance. An Owner was told by the Strata Manager, through a realtor, that cream and white window blinds would comply with the Bylaws; the Strata later demanded their replacement without proving the Bylaw had actually been breached. Because the Strata is bound by its own agent's representations, enforcing the Bylaw against an Owner who reasonably relied on that representation was significantly unfair (Bevacqua v. The Owners, Strata Plan BCS2723, 2024 BCCRT 928).

Reversing an approval is not automatically significantly unfair, though, and the remedy should track whose reliance is actually at stake. A Strata that had approved split air conditioning units for disabled residents, subject to a removal clause, unilaterally deleted that clause. The tribunal found the accommodation basis for a permanent exemption disappears once the disabled resident leaves, so removal could still be required, but it declined to force immediate removal against a subsequent purchaser who had bought the Strata Lot in the reasonable belief the unit was permanent, deferring that Owner's removal obligation until resale (Ottens et al v. The Owners, Strata Plan LMS 2785 et al, 2019 BCCRT 997).

WHY DO SOME ALTERATION REFUSALS SURVIVE A SIGNIFICANT-UNFAIRNESS CHALLENGE?

A refusal survives a significant-unfairness challenge when an Owner's expectation of approval was not objectively reasonable to begin with, not simply genuine. An Owner whose request for a heat pump was refused pointed to another Owner who had received approval for medical reasons, but that other Owner had provided stronger medical evidence, including proof that a portable air conditioning unit was inadequate. The applicant provided only a general doctor's note, and the Strata's own concern about electrical-load capacity was a legitimate, non-pretextual reason. The refusal was not significantly unfair, even though the two requests looked similar on the surface (Binge v. The Owners, Strata Plan LMS 988, 2023 BCCRT 441).

A Strata's own consultation process also carries weight. A Strata that hosted a professional workshop, distributed a discussion paper, and put a heat pump bylaw to two separate votes, both of which the Owners rejected by a wide margin, had not acted significantly unfairly by refusing the installation afterward. Courts and the tribunal defer to a Strata's democratic governance except when intervention is absolutely necessary, and an Owner's disappointment with a properly conducted vote does not meet that standard (Leishman v. The Owners, Strata Plan VR 2648, 2022 BCCRT 1136).

An Owner who proceeds without approval, or who seeks retroactive approval for a change that actually required the Owners' own authorization by vote, faces the same result. Owners who installed a patio cover after an earlier request was refused, an Owner who sought retroactive approval for a patio cover installed without ever applying, and Owners who asked a Strata to retroactively approve a crawlspace renovation that needed a unanimous vote to amend the strata plan, all had no reasonable expectation of approval to begin with. None of these refusals was significantly unfair (The Owners, Strata Plan LMS 515 v. Kendrick et al, 2019 BCCRT 394; Borghardt v. Strata Plan BCS 1135, 2021 BCCRT 777; [*Taylor v. The Owners, Strata Plan VR 2306, 2021 BCCRT 850).

Differential treatment between similar requests also survives a challenge once the Strata can point to an actual, rational distinction, rather than the absence of one described above. Bylaws permitting storage in some parking stalls but not others were upheld because limited common property and enclosed stalls provide security that unenclosed common-property stalls do not, a real distinction rather than an arbitrary one. And a Strata's refusal to replace one Owner's windows, after replacing others', was not significantly unfair because the other replacements involved broken seals and water damage that this Owner's windows did not have. In both cases, the Strata's own evidence closed the exact gap that was open in Wilder and Mogharreban (Nadjafov v. The Owners, Strata Plan BCS 1362, 2021 BCCRT 814; Sha v. The Owners, Strata Plan NW 644, 2022 BCCRT 196).

WHAT SHOULD COUNCIL DO WHEN DECIDING AN ALTERATION REQUEST?

It is important for Council to treat its own approval history as the first thing it checks before refusing a new alteration request. A Strata that has approved a comparable request before needs an actual, articulable reason to refuse a materially similar one, and that reason should be recorded at the time of the decision rather than reconstructed after a dispute begins.

Our recommendation is that Council keep a written record of the criteria it actually applies to alteration requests, and apply the same criteria to every request of the same kind. Where Council intends to distinguish a new request from one it approved previously, it should be able to state the factual difference driving that distinction, the way the Strata could in the parking-stall and window disputes above.

It is equally important for Council to treat a written approval it has already given as something an Owner is entitled to build on, not something Council can walk back for free once the Owner has relied on it. A Strata that wants to revisit an old approval should identify an actual, current, and legally sound basis for doing so before it acts, rather than after an Owner has already challenged the reversal.

A DECISION ON AN ALTERATION REQUEST NEEDS A CONSISTENT, DOCUMENTED REASON

An Owner's request to alter a Strata Lot or the common property puts Council's discretion squarely in front of the significant-unfairness standard, whether or not a Bylaw expressly limits that discretion. The pattern in both the courts and the Civil Resolution Tribunal is consistent: a refusal or a reversal that cannot be tied to an articulable, consistently applied reason is at real risk of being found significantly unfair, while a decision Council can explain by reference to its own criteria and its own past practice generally is not.

A robust and resilient Strata Community treats every alteration decision as one it may eventually have to explain, not only to the Owner who receives it, but to every other Owner whose own past or future request will be compared against it.