The Decision to Significantly Change the Common Property Belongs to the Owners, Not Council

WHO CAN APPROVE A CHANGE TO THE COMMON PROPERTY?

Council can approve a change to the common property on its own if the change is not significant, but the Owners themselves must approve it by vote if the change is significant. It is reasonable to assume Council can approve most changes to the common property on its own, since Council manages the Strata's day-to-day affairs. However, the moment a proposed change crosses into "significant," the decision no longer belongs to Council at all. It belongs to the Owners, voting at a general meeting, and Council has no authority to make that call for them. The vote itself is a ¾ vote at an annual or special general meeting, or a majority vote where the change relates to EV charging infrastructure (Strata Property Act, s.71).

That distinction sounds simple stated this way, but the law is about line drawing, and in practice this particular line is not obvious. Courts and the Civil Resolution Tribunal have had to draw it repeatedly, through careful consideration of facts ranging from a storage shed to a rooftop deck to a change in the colour of an exterior wall, and that consideration has produced a set of practical guidelines Council can actually use. There is a presumption in law that if people understand the law, they will act consistent with what it requires, and Council cannot act consistently with a line it has not been shown. The rest of this article sets out where that line has actually been drawn, and how to tell, before Council acts, whether the decision is made by the Owners or by Council.

WHAT TEST DECIDES WHETHER A CHANGE IS SIGNIFICANT?

Courts decide whether a change is significant using a six-factor test set out by the BC Supreme Court in Foley v. The Owners, Strata Plan VR 387, 2014 BCSC 1333. The court weighs:

• Visibility to residents or the public.

• The effect on the use, enjoyment, or an existing benefit of a unit.

• If there is direct interference or disruption caused by the change.

• The effect on marketability or value.

• The number and mix of units and the Strata's general use.

• How the Strata has governed itself in the past, including whether it has permitted similar changes before.

No single factor decides the question on its own. This is a weighed, fact-specific assessment, not a checklist where one box being ticked settles it.

There is one exception. Where an alteration incorporates part of the common property into a private, exclusive-use area for the benefit of only one Owner, that alone is enough to make the change significant, even setting the other six factors aside (Foley, para. 28).

Foley's six factors have been consistently applied since. Anthony v. Schnapp, 2016 BCSC 1839, quotes the same passage word for word (para. 36), and we have found no case that departs from it.

HOW CONSISTENTLY DOES THE CIVIL RESOLUTION TRIBUNAL APPLY THIS TEST?

The Civil Resolution Tribunal applies the *Foley* factors with a level of consistency that is unusual for a body that decides an enormous volume of these disputes. In our review of the tribunal's own published decisions on significant change, the tribunal cites Foley by name, or restates its factors almost word for word, in the large majority of decisions that actually weigh whether a change was significant. The tribunal is applying the same legal test to new facts each time, rather than developing one of its own.

A single Civil Resolution Tribunal decision is a data point, not a binding decision on the next dispute; we have written about that distinction, and why it matters, in another article. What a large volume of decisions from the same tribunal can show, reliably, is a direction for how that pattern is trending on a given kind of fact pattern, even though no individual decision commits the tribunal to keep deciding the same way tomorrow. That direction is worth knowing before Council decides whether to treat a proposed change as routine.

WHAT PUSHES A CHANGE TOWARD BEING SIGNIFICANT?

Foley itself shows how these factors actually apply. The alteration under review there, an unauthorized deck extension and new railing, was significant because it was visible to other Owners and the public, adversely affected two neighbouring units' privacy and quiet enjoyment, likely increased the altering Owner's own unit value, and had no precedent in a Strata that otherwise governed itself by the Act and its bylaws (Foley, paras. 22-27, 29). Anthony v. Schnapp applies the same six factors to its own facts and reaches significant findings on similar grounds: raised garden beds that occupied an entire grassy corner, fruit trees planted directly in the lawn rather than kept as moveable potted plants, and a fence that was highly visible and changed the property's aesthetic theme with no explanation for why the existing cedar hedge could not simply have continued, were all found significant on the same visibility and permanence reasoning (Anthony, paras. 38, 40, 41-42).

The Civil Resolution Tribunal has followed this same reasoning repeatedly in its own decisions. A hard-roofed gazebo whose solid roof and visible frame changed a patio's appearance for everyone who could see it was found significant on the visibility and permanence factors (Giddings et al v. The Owners, Strata Plan BCS 3620, 2018 BCCRT 61). A rooftop deck built for the benefit of only one Owner was found significant on the privatization factor alone, without needing to weigh the rest (Bowie v. The Owners, Strata Plan VR1122, 2019 BCCRT 1342). A cedar storage shed was found significant partly on permanence, being bolted in place rather than moveable like furniture (Berezan v. The Owners, Strata Plan NW 9, 2019 BCCRT 438). A mini-split heat pump installation was found significant on the interference factor, because of its noise impact on the adjoining Owner, even though the installation itself was not especially visible (Fleming v. The Owners, Strata Plan 1290, 2021 BCCRT 1117).

WHAT PUSHES A CHANGE AWAY FROM BEING SIGNIFICANT?

Anthony v. Schnapp shows the same factors pointing the other way, on different facts within the same case. Levelling and adding gravel to an existing parking spot was not significant, absent evidence it had overtaken a significantly larger area of common property (Anthony, para. 46). A shed built close to a neighbouring strata lot was not significant on these facts, distinguished from the garden beds and fruit trees by its location and its lack of interference with the neighbour's own use of the property (Anthony, paras. 47-48). Decorative, removable items point the same way: a strata council's temporary permission for potted cedar trees, a holly bush, planters, and a garden bench on a shared common-property entry way was not a significant change, since the items were modest and removable on notice rather than a lasting alteration to the property itself (Reid v. Strata Plan LMS 2503, 2003 BCCA 126, para. 31). We have written about the safety and emergency exception itself, including Anthony's own example of it working, in another article.

The Civil Resolution Tribunal has applied the same reasoning in its own decisions. A genuinely documented pattern of past approvals can be decisive: where a Strata could point to eight earlier, similar patio extensions it had approved without a vote, that pattern was enough to keep a ninth extension from being treated as significant (Wilder et al v. The Owners, Strata Plan BCS 3152, 2019 BCCRT 212), though it is important to note that how much weight this kind of pattern carries has not been perfectly consistent from one tribunal decision to the next. We have written about how an Owner can rely on a Strata's own prior approval in another article, and the same caution runs the other way: Council relying on its own past practice needs that practice to be real and comparable, not just convenient. Low visibility indicates that a change is not significant: a rooftop air conditioning unit was found not significant where the roof was locked, inaccessible to other Owners, and had no effect on anyone else's use of the property (D'Onofrio v. The Owners, Strata Plan LMS 895, 2021 BCCRT 1033). A decorative, easily removable change is treated the same way: a paving-stone patio extension was found not significant on the same reasoning (Deane v. Cusick et al, 2019 BCCRT 539). A genuine safety exception is argued far more often than it succeeds, but it was made out where a deteriorated, rusting awning needed to come down immediately (Progressive Technologies Inc. v. The Owners, Strata Plan VAS 2828, 2019 BCCRT 715). Finally, a change to a governance, access, or cost-allocation rule, rather than a physical alteration, falls outside this question altogether, whatever the other factors might otherwise show.

WHEN SHOULD COUNCIL LET THE OWNERS DISCUSS AND DECIDE?

Council should treat the factors above as a self-check to run before acting, not after. A proposed change that will be visible from outside the unit, that will be bolted down or otherwise permanent, that will carve out space for the benefit of only one Owner, or that a neighbour is likely to actually feel, whether through noise, a lost view, or reduced privacy, indicates that the alteration should only be permitted if there is a resolution passed by the Owners.

Our recommendation is that Council be cautious about leaning on "we have always allowed this" unless that pattern is actually documented and genuinely comparable, given how inconsistently the Civil Resolution Tribunal has weighed that same argument on similar facts. Council should also be clear-eyed about the difference between a genuine emergency and a convenient reason to skip the vote: the safety exception protects an Owner or a Strata that had to act immediately to prevent loss or damage, not one that would simply have preferred not to hold a meeting.

Getting this wrong carries real consequences beyond the vote itself. A change Council approved without authority can be ordered restored at the responsible Owner's expense, or become the subject of a special general meeting called after the fact to ratify or reject what was already done. Either outcome costs more, in money and in trust, than asking the Owners in the first place would have.

WHEN THE ANSWER IS UNCLEAR, THE OWNERS SHOULD DECIDE, NOT COUNCIL

Council has real authority to manage the common property, but that authority stops where a change becomes significant, and that line has been drawn by a fact-specific legal test the courts and the Civil Resolution Tribunal have applied consistently for years. Council does not need to get every case right on its own. It needs to recognize the fact patterns that regularly tip toward significant, and treat a genuinely close call as a reason to ask the Owners rather than a reason to guess.

The key purpose of the law is for social ordering, and a Strata Community is better ordered when everyone understands who decides a given change before it happens, not after a dispute forces the question. A robust and resilient Strata Community treats that question honestly rather than conveniently. Where visibility, permanence, exclusivity, or a neighbour's own enjoyment are genuinely in play, the decision belongs to the people who will have to live with it.