B.C.’s Civil Resolution Tribunal has ruled a Whistler strata owner has no right for a path to be cleared through snow banks so she can access her hot tub.
Beverly Constantini sought $4,600 for loss of use of her hot tub, hot tub maintenance costs and expenses incurred to move her hot tub. She claimed significantly unfair treatment for unreasonably interfering with her right to use a common property path to access her hot tub.
In her Nov. 14 decision, tribunal member Kristin Gardner said Constantini said the strata’s contractor regularly uses a common property vehicle turnaround next to the bare land strata to pile snow cleared from the strata’s streets during the winter months.
Constantini said the snow piles damage the common property and leave behind excessive rocks and gravel in the spring, requiring maintenance and repair.
Gardner said that, from 2018 to 2020, the strata paid Constantini’s gardener each spring to repair and clean up the area around the common property turnaround.
However, in 2022, the strata declined to pay the gardener for such work.
Constantini also said the snow piles prevent her from accessing her hot tub at the rear of her property during the winter.
Constantini also sought $367.50 for reimbursement of her gardener’s invoice to clean up the turnaround area in 2022 as well as an order that the strata budget $500 annually for spring repair and maintenance in the common property turnaround.
The strata said it’s not obligated to reimburse Constantini for common property repair and maintenance that she chose to undertake.
While it did acknowledge it previously agreed to pay for Constantini’s gardener to do some spring cleanup work, the strata said that was based on its strata manager’s misapprehension of the common property boundary.
So, the strata said, that does not mean it is obligated to continue paying for that work.
The strata also said it is not obligated or responsible to clear a path on common property for Constantini to access her hot tub.
Still, Gardner found the strata likely does not pile any snow directly on Constantini’s strata lot.
The strata claimed the gravel is not damage, and that gravel is a “normal state of affairs” in a mountain community like Whistler.
“it is not the strata’s responsibility to maintain or repair any damage caused by its snow-clearing activities,” Gardner said.
The hot tub
The tribunal said the strata is subject to a covenant that the home must include a suite for employee housing.
“Constantini installed a basement suite to comply with the covenant, which cut off access to her hot tub on the basement level behind her house,” Gardner said.
While her initial tenant allowed her to access the hot tub through their suite, new tenants in May 2021 did not agree to that arrangement.
So, Constantini said she had to exit her front door and use the common property stone path behind the turnaround to access her backyard.
The snow piles made that difficult, she said.
“As the strata continued to pile snow in the turnaround area, Ms. Constantini says she ultimately decided to crane her hot tub out of the backyard in November 2022, and replace it with a smaller hot tub that fits on her upstairs deck,” Gardner said.
She said Constantini’s expectation was unreasonable.
“I agree with the strata that Ms. Constantini is responsible for her own inability to easily access her hot tub,” Gardner said. “I find it is unreasonable to expect the strata to create or maintain a path through common property so that Ms. Constantini can access the backyard.”
As such, Gardner dismissed the claim.
