#28959

“If a motion was submitted and did not pass, you could potentially challenge that decision if you were able to assert that the opposition of your neighbour to the motion was unreasonable in the circumstances.”

To all:

I am trying to develop a series of grounds to assert that the opposition to the motion (that the CMS be amended to reflect current structures and redraw the Exclusive Use plan) be unreasonable in the circumstances.  (The CMS hasn’t been amended since 2000.  It is 2018 and a great many changes have taken place throughout the property, many fences, etc.)  

It’s hard as I’m sure anyone could argue that her opposition is perfectly reasonable because it’s her “exclusive use” area.  But surely there are grounds to be considered “in the circumstances”.  Otherwise, why have that clause at all?

“Reasonableness is decided objectively, based on the circumstances.” – According to a BCCM Adjudicator.

In these circumstances, there are a many reasons her reclaiming the area will have significant impact on us.  There are many reasons as to the manner in which the problem came to exist that have made it reasonable in the circumstances that we are occupying the area.  The fact that the BCorp Manager kept the issue from us until it was too late to do anything about it.  There are a dozen reasons.  Surely these amount to something “in the circumstances”?  

Does anyone have any strong examples of what has been considered “in the circumstances” that we could use in our argument?

We would also request for some restrictions to her intended works such as her affixing her fence to our building and occupying the area directly adjacent to our ENTIRE living area (where we spend all of our waking hours).  To limit that impact her modifications would have on our enjoyment of our Lot.  Surely there area restrictions as to what a Lot owner can do on Common Property anyway.  She seems to think she can start building the Taj Mahal if she wants, with complete impunity.

The basic rule governing an owner’s use of common property is contained in section 167 which prohibits an owner from using, or permitting another from using, their lot or the common property in such a way that it interferes unreasonably with another’s use or enjoyment of their lot or the common property.  There is a general requirement that an occupier must not use or permit the use of a lot or common property in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of other occupiers (Act, 167). For example, if an occupier of one lot was to sit on the common property immediately in front of another occupier’s doors or windows then that may amount to unreasonable interference with the second occupier’s enjoyment of their own lot and it would be no excuse for the first person to say they were acting within their rights by using common property for their own benefit.

Any more thoughts?

Thanks guys 🙂