“Interracial, sexual-minority couple” win Vancouver strata dispute over hot tub on penthouse patio

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      John Emmerton and Van Ortega describe themselves as an “interracial, sexual-minority couple”.

      Last year, the two purchased a penthouse at a downtown Vancouver condo tower.

      Their 26th-floor property includes a large and open deck or patio for their exclusive use.

      Not long after buying the penthouse, Emmerton and Ortega obtained an engineering assessment about whether or not it’s safe to have an inflatable hot tub on the patio.

      Satisfied that it was, the couple placed a tub.

      Less than a month later, they received a letter from the strata management company, which stated that there was a complaint that the couple erected a "pool".

      The strata claimed that the presence of the hot tub violated the corporation’s bylaws.

      For their part, the couple wanted the strata to leave them alone with their tub.

      These were all related by Kristin Gardner, member of the Civil Resolution Tribunal, in her reasons for decision in the dispute that reached the online B.C. tribunal.

      Gardner’s decision, in effect, allows Emmerton and Ortega to keep their inflatable hot tub.

      Gardner declined to make a specific order about the tub, explaining that the strata’s bylaws allow owners to keep furniture on their decks and decks, along with saucers, and propane or electric barbeque grills.

      The CRT member established that the couple’s tub is not a permanent fixture, and that it is a piece of furniture.

      It is inflatable, easily drained and folded, and carried away.

      “Overall, I accept that the applicants’ inflatable hot tub is readily moveable,” Gardner wrote.

      “I find it is a piece of furniture in which the applicants can sit to use and enjoy the patio. I also find that it can be placed in different locations on the patio each time it is inflated and filled.”

      Emmerton and Ortega, therefore, did not make a bylaw breach.

      “I decline to order that the strata allow the applicants to keep the hot tub. 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.

      “In the absence of a bylaw contravention, I find the strata has no authority to require the applicants to remove the hot tub from the patio. Therefore, I find it is unnecessary to specifically order that the applicants be permitted to keep their hot tub on the patio, and so I make no orders about the hot tub,” Gardner wrote.

      However, the tribunal member ordered the strata to pay Emmerton and Ortega the sum of $1,275, which is made up of $225 in CRT fees and $1,050 in dispute-related expenses.

      Gardner also noted that Emmerton and Ortega alleged that the strata “enforced the bylaws against them because they are an interracial, sexual-minority couple”.

      “However, I find this allegation is speculative and there is insufficient evidence to prove that is the case,” Gardner stated.