A Vancouver strata spent $22,000 fighting to have a patio hot tub removed only to have B.C.’s Civil Resolution Tribunal find the tub is patio furniture and can stay.
John Emmerton and Van Ortega put an inflatable hot tub on a limited common property rooftop patio outside their unit.
The strata told tribunal member Kristin Gardner that strata bylaws do not permit hot tubs on patios and the two are in contravention of bylaws.
Emmerton and Ortega disagreed. They argued the strata unfairly targeted them for bylaw enforcement and sought an order for the strata to stop infringing their rights to choose the patio furniture they want.
Gardner said evidence showed Emmerton and Ortega obtained an August 2021 engineering assessment about whether the patio outside the unit could support an inflatable hot tub and were satisfied that the hot tub would not cause any structural issues. They installed the hot tub on the patio later that month.
The strata management company sent Emmerton and Ortega a Sept. 14, 2021 notice of infraction letter, which advised that the strata had received a September 3, 2021 complaint about the applicants having erected a “pool” on their patio. It advised fines could be imposed.
Emmerton and Ortega’s lawyer disputed the allegation and the case wound up in a strata council hearing where they were told they would get weekly fines for ongoing contraventions.
Then the strata advised it could propose a new bylaw against hot tubs but said fines would continue.
Gardner found there was no suggestion Emmerton and Ortega were improperly “storing” the inflatable hot tub.
“I infer that when the hot tub is on the patio, it is generally inflated and filled, and the applicants actively use it,” Gardner said. So, the question is whether it is a permitted item on balconies and patios, and specifically, whether it is “patio furniture.”
Gardner said that, having found the Emmerton and Ortega’s hot tub didn’t breach any of the bylaws the management company cited in infraction letters, there was nothing currently requiring the two to remove their inflatable hot tub from the patio.
“As I have found the applicants’ inflatable hot tub is patio furniture, I find the bylaws expressly permit the applicants to have the hot tub on the patio,” Gardner said.
She ordered costs to be paid to Emmerton and Ortega and declined to order reimbursement of the strata’s legal bills of more than $22,000.
