Carport or pergola? B.C. couple win legal fight with strata

A B.C. couple won't have to pay $3,200 in strata fines after it successfully convinced a Tribunal that they built a pergola and not a carport.

According to an April 13 B.C. Civil Resolution Tribunal, the Fraser Valley strata had fined Terry and Carline Morelli $200 each week for not taking down what it said was an unauthorized structure.

However, the Morellis took strata BCS 1493 to a Civil Resolution Tribunal arguing they'd built a pergola, not a carport, and they didn't need the strata's permission to build it.

According to the decision the cedar structure had horizontal slats and formed an open, lattice-style roof.

The Morellis then stored their boat underneath it.

In the decision, the strata argued that because the Morelli's used the structure "exclusively" for boat storage, it is a "carport."

The strata pointed to its bylaw which states, "a carport is a covered structure used to offer limited protection to primarily cars from rain and snow."

However, the Tribunal found the structure didn't fit what the bylaw said.

"I find the structure’s open roof would offer almost no 'protection…from rain and snow,' as required under the strata’s definition of carport," the Tribunal ruled. "For this reason, I find the structure does not violate (the) bylaw."

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The strata also argued that the structure had been built without permission contrary to its bylaws.

But the Tribunal picked apart the bylaws.

"I find that the wording of (the) bylaw… is unclear and contradictory. It sets out a rigorous written approval process for 'any dwelling, building or other improvement whatsoever, hereinafter referred to as a dwelling or house," the Tribunal said. "However, it makes no sense to refer to that structure as a 'dwelling or house' since it is almost entirely open to the elements, and has no closed walls or roof."

The Tribunal then went on to say that the strata's actions in relation to the structure were significantly unfair.

"The Morellis provided photos of at least 11 structures on other strata lots, including sheds, a pergola, a privacy wall, and a gazebo," the decision reads.

The strata argued these structures were not the same, and the Morellis’ structure was "unique."

The Tribunal had none of it.

"I find that explanation is unreasonable and unexplained," the Tribunal ruled. "The strata did not provide a convincing explanation for its position that (the) bylaw… requiring advance written permission applies to the Morellis' structure, but not to the other structures, which I noted above included a gazebo, a pergola, a privacy fence, and numerous sheds."

The strata also argued that backyard structures are not subject to bylaws, but the Tribunal says the statement is "factually incorrect."

"Given the numerous other unapproved structures in the strata, I find the Morellis had a reasonable expectation that their structure did not require specific permission. I find the strata violated that reasonable expectation with its demand that the Morellis remove the structure and its decision to fine them," the Tribunal ruled.

Ultimately, the Tribunal ruled the strata must wipe the $3,200 of fines it had issued and allowed the Morelli's to keep their pergola.

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