A South Okanagan cat owner will be able to keep their “catio” enclosure after a neighbour took legal action to have the structure removed.

According to an April 7 BC Civil Resolution Tribunal decision, the neighbour, Malcom Rourke, argued the Strata should not have allowed the structure to be built as the other owners had not approved it. Rourke also argued the structure went against the Strata’s bylaws.

However, the Tribunal ruled that while the structure did breach the bylaws, it would be significantly unfair to get the owner to remove it.

The decision says the catio was built in November 2023 and consists of a corrugated plastic roof extension, a wood frame, a door, and mesh enclosing the entire patio. The cat owner, who is not named in the decision, had it built on the deck of their Oliver strata condo after adopting two cats.

The cat owner asked the Strata for permission to build it, which it granted.

After the catio was built, Rourke, who lived two doors away, complained to the Strata, saying it breached the bylaw and the structure should have gone to a vote.

The Strata agreed, a special general meeting was scheduled, and the owners voted that the catio did, in fact, breach its bylaw, which now required the owner to remove it.

However, the Strata later found for technical reasons, the vote was invalid.

Soon afterwards, the Strata council all resigned.

The cat owner became the Strata secretary, and another annual general meeting was held.

Sixteen residents voted in favour of keeping the catio, while six voted against it. The vote didn’t pass the three-quarters majority that it needed, but the Strata allowed the catio to remain.

It’s unclear when, but Rourke at some point hired a lawyer and took the Strata to the Civil Resolution Tribunal, arguing the catio had to be removed.

The decision goes through BC Strata Property Act and what is considered a “significant change.”

“The catio is very large as it encloses the entire patio. However, the strata’s undisputed submission is that the catio is not visible to the general public,” the Tribunal ruled. “I conclude that the there has been no significant change in the appearance of (the car owner’s) patio…. I find the catio’s visibility is limited to strata residents as well, despite its size. The catio is also comprised of neutral colours that largely match the strata’s exterior.”

The Tribunal also ruled that the catio doesn’t directly interfere with or disrupt other residents.

Rourke argued the catio installation involved changing the gutters, which breached its bylaw concerning alterations.

The Tribunal agreed, finding that the cat owner was obligated to get consent of all owners by way of a special resolution and hadn’t done so, therefore breaching the bylaw.

While the Tribunal’s ruling on the bylaw may appear to be a win for Rourke, the Strata argued it had the discretion to refrain from enforcing the bylaws in these circumstances.

The Strata said it had historically approved alteration requests, particularly those involving the owners’ patio and backyard areas. It said it had allowed four other owners to install pet fences.

The argument swayed the Tribunal.

“I find that if the strata were to remove the catio, this would violate (the cat owner’s) reasonable expectation through a significantly unfair action,” the Tribunal said. “The (cat owner) spent funds to build the catio. … (and) given its size I find the cost was likely significant.”

Ultimately, the Tribunal ruled it would be significantly unfair to remove the catio and that the Strata didn’t fail to enforce its bylaw.

The Tribunal rejected Rourke’s claim, leaving him with his undisclosed legal bills.