Strata wins legal challenge in Kelowna parking stall saga

A Kelowna condo owner who paid for a parking spot which has been unusable for the last five years will have to wait even longer for the issue to be resolved after her strata corporation won a recent legal challenge.

According to a Feb. 10 BC Supreme Court decision, the issue over Kendra Lee Siemens’ unusable parking spot will have to be once again be heard by the BC Civil Resolution Tribunal after Justice Wendy Baker overruled an early Tribunal ruling.

Justice Baker ruled the Tribunal’s order was unreasonable as it had required the strata to do things it had no power to do.

The legal saga began in 2019 when Siemens’ Ethel Street condo building repainted the parking stalls.

Siemens parking stall was moved two feet, which meant that if a vehicle was in a nearby space, it was impossible to use her stall.

A chainlink fence was also put up that made it impossible to open the car door after her vehicle had been parked.

After two years of living with a largely unusable parking spot, Siemens took Strata EPS 3699 to the BC Civil Resolution Tribunal to get an order that the strata either fix her parking spot or get her with another one.

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The Strata argued it wasn’t its responsibility and she had to take it up for the developer who she bought her unit from.

However, in 2023, the Tribunal rejected the Strata’s argument that it wasn’t its responsibility.

She won the case and the Tribunal ruled the Strata had to provide her a useable spot even if that meant getting a variance approved at the City of Kelowna.

However, the Strata appealed the decision to the BC Supreme Court.

While it wouldn’t appear on the surface that finding another parking spot for Siemens would be complicated, the Strata ran into legal difficulties when it tried.

The Strata argued it couldn’t follow the Tribunal’s order as it breached the Strata Property Act and was “vague, ambiguous and unenforceable.”

The ownership of the parking space is different than the ownership of their condo in the Strata Act.

The court found that the Strata didn’t have the legal authority to give a new parking to Siemens permanently.

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While it could give her a spot for 12 months it wouldn’t be permanent.

Another sticking point was that as land change uses need to go to a vote, any changes made now could be reversed in the future at another vote.

The Supreme Court also found that some of what the Tribunal had ordered was only possible if all condo owners agreed to it.

The matter seems hindered even more, as the building doesn’t have the required number of visitor parking stalls the City had mandated.

“It is not clear how the City would respond to the loss of one of the visitor parking stalls,” Justice Baker said.

The Justice found the Tribunal’s remedy to the parking issue was unenforceable and it needed to be looked at it again.

As is standard practice, the court gave no guidelines as to how the Tribunal and the Strata should resolve the parking stall issue.

The court’s move means, Siemens, who paid for the parking stall almost a decade ago, still hasn’t resolved exactly where she’s supposed to park.