Strata Disputes

– adopting an operating budget (s. 103).

Strata Disputes

• amending bylaws (s. 126);
• authorizing extraordinary expenditures (ss. 96 and 97);
• authorizing a special levy (s. 108);
• authorizing a significant change in the use or appearance of common property, and granting or revoking limited common property designations (ss. 71, 74, and 75);
• acquisition and disposal of property (ss. 78 to 82);
• authorizing litigation (ss. 171 and 172);
• creating or cancelling sections (s. 193);
• amalgamating strata corporations (s. 269) (not applicable to a section)

• allocating expenditures other than prescribed by s.99 (unit entitlement) (s. 100)
• amending the strata plan (ss. 257, 259, 262, 263, 265, and 266)
• cancelling the strata plan (ss. 272, 276, and 284)

An annual meeting is the forum where owners formally gather with the object of voting on resolutions before the meeting. General meetings can be annual general meetings (AGM) or special general meeting (SGM).

All owners who are eligible voters may vote at a general meeting

Persons not included in s. 54 of the Act, and all owners who are prohibted from voting because the strata corporation is entitled to register a lien against the Owner’s Strata Lot (and the strata has a bylaw pursuant to s. 53(2)).

When the following is in place:

• The Strata Corporation has a bylaw in place pursuant to s. 53(2) of the SPA, which section stipulates that the strata may make a bylaw that prohibits an owner from voting at a general meeting;
• The Owner is in arrears with s. 116 fees;
• a s. 112(2) notice has been given; and
• 14 days (plus 5) have elapsed from the date of the notice.

• strata fees;
• a special levy;
• a reimbursement of the cost of work referred to in section 85;
• the strata lot’s share of a judgment against the strata corporation [s. 116(1)]
• or interest thereon.

Yes. Fines are not lienable in terms of s. 116 of the SPA.

Yes. [s. 53(2)]

Yes. [s. 116(3)(b)]

No. The default will not be acceptable to the strata corporation [s. 116(3)(b)]

All tenants have the following rights under the Act:

• to obtain a copy of the strata’s bylaws and rules and a Notice of Tenant’s Responsibilities (Form K) from the landlord;
• to inspect and obtain copies of the bylaws and rules from the strata corporation at no charge;
• to request that the strata council grant them short term exclusive use of common property;
• to the same access to any dispute resolution methods as an owner;

All tenants have the following rights under the standard bylaws:

• to attend annual and special general meetings, unless a majority vote is passed to exclude them from the meeting; and
• to participate in discussions at annual and special general meetings if permitted by the chair.

Long term tenants are residential tenants with leases of three years or longer. With some exceptions, long term tenants have the same rights and obligations as landlords under the act, regulations, bylaws and rules for the duration of the lease. Before exercising any rights of the landlord, long term tenants must provide the strata corporation with written notice of the term of the lease and their name. This is most effectively achieved by supplying a copy of the lease to the strata council/ Long term tenants may not take any action that will affect the owner’s interest in the strata lot, common property or land that is a common asset. Long term tenants must pay strata fees, pay special levies that are due within the term of the lease; and maintain and repair parts of the strata lot and limited common property that the bylaws make the owner responsible for. Long term tenants have the right to access and obtain strata corporation records, attend and vote at general meetings, receive strata corporation notices; and to be eligible for election to the strata council.

Yes, provided that they give written notice of the assignment to the strata corporation stating what rights and obligations are assigned to the tenant; the name of the tenant; and the time period that the assignment is effective.

The owner’s (landlord) responsibility to pay the cost of remedying contraventions or fines on behalf of the tenant cannot be assigned to the tenant.

If the Owner has a valid license, yes!

However… Under the new marihuana regulations in force as of June 19, 2013, Health Canada will phase out all marihuana production in residential areas, including residential strata lots. The intent is to phase out private producers and to make medical marihuana available to users through reputable, licensed and controlled producers. Production will take place in secure and highly regulated commercial facilities by licensed professionals. Under the current scheme, there are no specific Health Canada policies dealing directly with medical marihuana being grown in a strata lot. Therefore, it is possible that an owner who lives in a strata lot may have been issued a valid production licence.

Growing marihuana illegally is against the law. Call the RCMP and have them deal with it.

Strata corporations may by bylaw regulate how many strata lots, if any at all, may be leased. This is called a rental restriction and the bylaw is called a rental restriction bylaw.

When an owner wants to lease his unit, but a rental restriction prohibits it, the owner can only lease that unit when the rental restriction will cause hardship to the owner. Section 144(1) of the Act states that an owner may apply for an exemption from a rental restriction bylaw on the basis that it causes hardship. This exemption is usually granted for a limited period, usually 1 year.

The strata corporation may not unreasonably refuse to grant an exemption [s.144(6)]. Some factors that Court has found relevant for consideration by Strata Corporation include (Als v The Owners, Strata Corporation NW 1067, 2002 BCSC 134): – inability to re-sell the unit/decrease in sale value from purchase price; – inability to obtain insurance because a unit is not occupied; – potential prohibitive cost of property management; – substantial decrease in sale value where a new ban on rentals is put in place; – value of the unit making up all or substantially all of an owner’s assets.

The owner must apply in writing to the strata corporation stating (i) the reason the exemption should be made, and (ii) whether the owner requires a hearing.

Your application must be in writing and can be a letter, addressed to the strata council, setting out the circumstances of the hardship. Although not required by the act you should supply statements, figures, calculations, etc. as proof of hardship. (Note that Council can only make an informed decision if they have all the facts. The strata council cannot make a decision if you only say that you are experiencing hardship).

If the owner does not request a hearing, the strata council has 2 weeks after the date that the application is received to give a written reply. If the owner does request a hearing, then the strata council must hold a hearing where the owner or his representative can speak to the application within 4 weeks after the date of the application. A decision must then be provided to the owner within 1 week after the hearing is held.

The act does not require a strata council to review their decision. An owner may apply to the supreme court to have the decision overturned if the consent was unreasonably withheld. Remember that this is an expensive and technical process; obtain legal advice before you attempt this.

In the Supreme Court

• Matters relating to the interpretation of the Act;
• Matters relating to the duties and obligations of various parties in a strata development;
• Collection of arrears strata fees and interest thereon, special levies and interest thereon (s. 116); and reasonable legal fees (s. 118)
• Filing an Arbitrator’s decision where the award is over $25,000.
• Order for eviction. injunction or other relief against an owner or tenant.

In the Small Claims Court

• Where the amount claimed is less than $25,000;
• Filing an Arbitrator’s decision where the award is over $25,000 for:
  • debt or damages;
  • recovery of personal property;
  • specific performance of an agreement relating to personal property or services;
  • relief from opposing claims to personal property.

The strata corporation may sue:

• As representative of all the strata lot owners;
• On behalf of one or more owners about matters affecting their strata lots;
• The strata corporation may sue an Owner

The Strata Corporation may be sued:

• As a representative of the owners with respect wot matters relating to common property, common assets, bylaws or rules, and an act or omission of the strata corporation;
• By the owner of a strata lot;
• By any third party with a valid claim.

Section 164 of the Act is used to remedy significantly unfair acts. The owner or tenant may apply to the Supreme court for an order preventing or remedying a significantly unfair act in relation to:

• Action or threatened action of the strata corporation;
• Decision of the strata corporation or strata council;
• Exercise of voting rights by a person who holds 50% or more of the votes, including proxies, at a general meeting.

The court may direct or prohibit an act of the strata corporation or council, vary a transaction or resolution, or regulate the conduct of the strata corporation’s future affairs; and may make any other order it considers necessary,

The Owner or Tenant can apply to the Supreme court for an order that the strata corporation

• per its duty under the Act, Regulations Bylaws and Rules; or
• stop contravening the Act, Regulations Bylaws and Rules

(section 165 of the Act)

The strata corporation can only be served by:

• Personally serving a strata council member; or
• Sending the notice by registered mail to the strata corporation at its most recent mailing address on file at the land title office (LTO)

The strata corporation must be authorized by a resolution approved by a ¾ vote of the owners at a general meeting before it can proceed with any legal action or arbitration. An owner who is being sued, cannot vote on this resolution.
The strata corporation does not require authorization if it is initiating or continuing legal proceedings to collect areas strata fees.
The strata corporation must be authorized by a resolution approved by a ¾ vote of the owners at a general meeting before it can proceed with legal action in the Small Claims Court, except if there is a bylaw in place that dispenses with this requirement. This action is typically required to collect fines and contributions to insurance deductibles.

When an owner is sued for areas strata fees or legal fees (s. 116) the owner will be liable for the reasonable legal costs (s. 118).
When a strata corporation is required to pay legal costs, the strata lot owners (except the one who is being sued) must contribute to the costs in proportion to their unit entitlement.

A proxy authorized the proxy holder to vote on the resolutions contained in the notice of the meeting for which he holds the proxy. This is usually to vote yes, no, or to abstain. As the Owner could not know of the content of any discussions and resolutions not contained in the notice, it cannot instruct the proxy holder ahead of time and the proxy holder is not authorized to vote on those resolutions (except of course if he obtains instruction on how to vote)

In general a proxy holder may take part in the discussions if he is authorized to vote on the resolution under discussion. However, it would not be proper for the proxy holder to take part in the discussion if he has no knowledge of the matter under discussion or if he is not authorized to do so.

Yes, but only if the proxy holder specifically authorized the nomination in the proxy document and indicated that he/she excepts the nomination and, if elected, he/she will accept the appointment.

Section 46(1) is clear. The strata council determines the agenda of the AGM. This includes the resolutions to be voted on.

Yes, the Owner may make this proposal to the Strata Council in writing. Usually, if the matter is of sufficient importance, the Strata Council will prepare the resolution and include it in the AGM notice. However, as the Strata Council determines the agenda of an AGM, Council may decide not to include the resolution.

Section 46(2) states that persons holding at least 20% pf the strata corporation’s votes (20% of all owners) may by written demand propose a resolution, which resolution must be on the agenda of the next AGM.

Firstly, section 43(6) does not apply. So, the owners cannot give notice and hold their own meeting to vote on the resolution. To do this, the owners must give notice in terms of section 43(1).
Secondly, the strata council will be in breach of the Strata Property Act. You can use any of the available dispute resolution methods, i.e. sue the strata corporation in terms of section 163, make application to remedy an unfair act in terms of section 164, ask the court to instruct the strata corporation to perform its duties and stop contravening the Act and the Bylaws, give notice of arbitration in terms of section 177, or commence action through the Civil Litigation Tribunal.

No, strata council determines the agenda and then includes the resolutions in the AGM notice. Resolutions not included in the notice have not come to the attention of the owners and owners not attending the meeting may be disadvantage as they do not have the opportunity to consider and vote on the resolution. It is not an argument that they should have been at the AGM; they may well have attended if they had notice of the specific resolution. New business dealt with under bylaw 28(l) of the Standard Bylaws is new business placed on the AGM agenda by the council.

If the matter is not on the agenda, this should not be allowed. If the meeting decides that it is important enough to discuss, the AGM chairman should finish the meeting and allow discussion thereafter. This is conducive to dealing with the AGM matter timeously and allow the Owners to discuss the matter in the presence of the newly elected council, who will then be in a position to deal with the matter.

Yes. It is legal for a strata corporation to adopt a non-smoking bylaw that bans smoking on common property, limited common property, and in strata lots. While there are many variations of bylaws that Strata Corporations can choose, for the purposes of this section, “Smoking Prohibition Bylaw” will refer to a bylaw that bans smoking in strata lots, on the interior common property (but not necessarily exterior common property), and on patios and balconies.

Non-smoking bylaws may be adopted by the owner/developer prior to the sale of any strata lots or by the owners by a ¾ vote resolution. Bylaws registered by the owner/developer prior to selling strata lots have the added advantage that all owners had notice before purchasing.

Restrictions and prohibitions should be reasonably connected to the purpose of protecting the health and/or comfort of non-smokers. Further, bylaws must comply with all legislation to be enforceable, including the Strata Property Act, the Residential Tenancy Act, and the Human Rights Code. Once passed by the owners, bylaw amendments must be filed in the Land Title Office in order to be enforceable

Yes. Strata corporations are able to amend their bylaws from time to time, and those amendments generally apply to all residents in the complex (unless a ‘grandfather’ clause is included). While section 123 of the Strata Property Act recognizes pre-existing rights in relation to pet and age bylaws, it does not deal with pre-existing rights for a behaviour such as smoking. We are not aware of any case law to support the premise that an owner who purchases a strata lot is not subject to a bylaw that governs behaviour after the purchase. Otherwise, bylaws governing behaviour would only apply to those individuals that take up residence after the bylaw is passed, which would create a situation where not all residents would be treated the same

This is more complex, as there may be a conflict between the Residential Tenancy Act and the Strata Property Act. Section 14 of the Residential Tenancy Act requires all changes to a rental agreement (except those expressly excluded), be consented to by both parties. Yet the Strata Property Act does not support tenants being exempted from bylaws. It can be argued that an owner transfers only those rights to a tenant that he or she has – so if an owner cannot smoke in a strata lot, neither can the tenant. It is recommended that legal advice be sought before enforcing a Smoking Prohibition Bylaw against a tenant who resided in the complex prior to the Smoking Prohibition Bylaw being passed and registered.

However, it should be noted that if the smoke from a rental unit is causing a nuisance to other residents in the complex, or another resident has a particular sensitivity to the smoke that is considered a disability under the Human Rights Code, the strata corporation could take steps to address these complaints (see Addressing Complaints of Second-Hand Smoke section).

Yes. Effective March 31, 2008, pursuant to the newly amended Tobacco Control Act, BC now has province-wide legislation that protects people from second-hand smoke in multi-unit dwellings, including strata corporations, by banning smoking:
• In common areas of apartment buildings, condominiums and dormitories, including elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies; and
• Within 3 meters (buffer zones) of public entrance ways to buildings, open windows and air intakes.
Smoking in these areas would be a breach of section 3(1)(d) of the Schedule of Standard Bylaws from the Strata Property Act, which provides that an owner, tenant, occupant or visitor must not use a strata lot, the common property or common assets in a way that is illegal.
Municipalities have the authority to pass non-smoking bylaws that exceed the new provincial smoke-free Regulations, including bylaws that regulate smoking within multi-unit dwellings. Municipalities such as the City of Vancouver, Surrey, Richmond and the Capital Regional District have passed bylaws with stricter buffer zone requirements than the province.

A demonstrated allergy or environmental sensitivity to second-hand smoke could garner the protection of the Human Rights Code and require a strata corporation to take steps to accommodate the disability. This may include enforcing the bylaws that the strata corporation already has, or creating new bylaws that deal with the situation.
It has been established that a strata corporation’s provision of management services comes under the purview of Section 8 of the Human Rights Code. While the Human Rights Code does not define either mental or physical disability, a wide range of physical and mental conditions has been granted disability status under the Human Rights Code. Traditionally, Courts, Tribunals and Arbitrators have given a broad and liberal interpretation of “disability.”
To establish that a strata corporation has discriminated against an owner with respect to an accommodation, service or facility on the basis of a disability, a complainant would need to establish both that he/she had a disability and that the strata corporation knew about the disability.
In one case, Konieczna v. The Owners, Strata Plan NW2489, 2003, BCHRT 38, the complainant alleged discrimination because of a bylaw that prevented the installation of flooring other than wall-to-wall carpeting. The complainant alleged this was discrimination on the basis of a physical disability as she was asthmatic and carpeting aggravated her condition. The Tribunal concluded that the complainant’s condition was indeed a physical disability, that the strata was aware of the disability, and that she was entitled to protection under the Human Rights Code.
Once a complainant establishes disability discrimination, the onus is shifted to the strata corporation to prove, on a balance of probabilities, that it had a reasonable justification for the discrimination. In this case, the strata did not raise the defense of justification, and the Tribunal ordered that the strata allow the complainant to install hardwood flooring and pay compensatory costs of $3500 for injury to her dignity, feelings and self-respect.
A Smoking Prohibition Bylaw can be supported by the Human Rights Code where the layout of the complex would require a strata corporation to ban smoking in order to accommodate a resident with a physical disability, such as asthma, allergies or some other disability exacerbated by smoke. For example, while it might be impossible to stop smoke travelling from one strata lot into another in a heritage house, it would be more difficult to justify a Smoking Prohibition Bylaw in a bare land strata corporation where a strata lot is comprised of a plot of land

The Charter of Rights and Freedoms does not recognize addiction to nicotine as a disability, and there is legislative support to enact and enforce Smoking Prohibition Bylaws. However, there is also case law to challenge them, and this case law should be considered when drafting such a bylaw. This section is not exhaustive, and only deals with section 8 of the Human Rights Code (discrimination in accommodation, service and facility). It is recommended that the legal opinion be reviewed in its entirety for a complete analysis of the challenges.
Courts, Tribunals and Arbitrators have adopted a broad approach to what constitutes a physical disability under the Human Rights Code. It was broadened even further with respect to nicotine-addicted individuals following a Labour Relations Board case in BC between Cominco smelter operator and its union in 2000.
At issue in Cominco was a smoking policy that banned the use and possession of tobacco on company property, and didn’t allow sufficient time for staff to leave the property on breaks to smoke. The Union argued that nicotine addiction constituted a disability under the Human Rights Code. They contended the policy discriminated against smokers because if they could not control their addiction, they would lose their jobs. The Union argued that addicted smokers must be accommodated in ways that would permit them to continue to work, and permit them to smoke in an outside area, while taking steps to ensure that the smoke didn’t contaminate the environment of others.
The Arbitrator acknowledged that the Courts have not found nicotine addiction to be a disability as a ground for protection under the Charter, but he held it was within the meaning of physical disability under the Human Rights Code. The Arbitrator determined that there was no inherent right to smoke, but referred the matter back to the parties for further discussion on accommodating the heavily addicted smokers up to the point of undue hardship. Cominco’s smoking ban remains in effect today.
It should be noted that the Arbitrator recognized that the increase in public smoking policies was meant to protect others from the harmful effects of second-hand smoke. Further, the trend toward establishing smoking policies is consistent with the position that while smoking is a legal activity, it should not be carried out in places where the smoke might harm others.
Regarding Smoking Prohibition Bylaws in strata complexes, smoking should only be banned in areas where non-smokers are put at risk, and this means that each strata council needs to examine what provisions will offer appropriate protection based on the layout of the complex and the residents. A Smoking Prohibition Bylaw can include provisions that allow for accommodation of residents who are addicted to nicotine. Depending on the situation, accommodation can take a variety of forms, such as providing a covered area outdoors where smoking would be allowed

1) Internal Remedies:
Assuming that the adoption of the Smoking Prohibition Bylaw has satisfied the procedural requirements under the Strata Property Act and is properly registered in the Land Title Office, there are several enforcement options available, including imposing a fine or restitution costs.
Prior to obtaining a remedy for non-compliance of the non-smoking bylaw however, the strata corporation must first follow mandatory bylaw enforcement procedures in accordance with section 135 of the Strata Property Act. The procedures include providing the owner with notice of the complaint received, the particulars of the complaint in writing and a reasonable opportunity to answer each complaint, including the offer of a hearing before the strata council. Judges always have the discretion to forgive fines charged by a strata corporation for breach of a bylaw, and generally seem inclined to do so if the procedures set out under section 135 have not been properly followed.
If the bylaw infraction involves a tenant, councils need to be aware of additional procedural requirements under section 135. Further, if a tenant continues to breach a Smoking Prohibition Bylaw, the strata council or the owner can, as a last resort, give the tenant notice terminating the tenancy agreement under section 47 of the Residential Tenancy Act.
2) Court-ordered remedy
In addition to internal remedies, a strata corporation can also seek a Court ordered remedy. The strata corporation can petition the Supreme Court of British Columbia for an order that an owner, tenant, occupant or visitor must comply with the bylaws of the strata corporation. Based on case law, it could be argued that an owner who is ordered by a Judge to comply with a Smoking Prohibition Bylaw and fails to do so, could be subject to an order to vacate his or her strata lot

There are many different legal avenues for strata corporations and individual owners to address unwanted second-hand smoke in a strata complex, including the following:
1) Common Law of Nuisance
Strata corporations and all residents of strata corporations in BC are protected by the common law action of ‘nuisance’. If an individual is bothered by smoke in a strata complex, both the strata corporation and the individual in the complex can apply to Court for injunctive relief that the individual who is causing the problem cease doing so.
As explained below, where the nuisance complaint involves people living in a strata complex, the Courts have recognized additional factors to consider in cases of nuisance. In this type of communal living arrangement, the residents are required to exhibit more cooperation and respect for others to ensure that each resident is able to enjoy their property to the fullest extent.
Even if a strata corporation does not have a Smoking Prohibition Bylaw, smoking that is a nuisance can be addressed as a breach of the bylaws.
2) Breach of the Schedule of Standard Bylaws
Pursuant to the Schedule of Standard Bylaws in the Strata Property Act, virtually all strata corporations in BC prohibit in their bylaws behavior that creates a nuisance or hazard to another person, or that unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot. This can include smoking, regardless of whether there is a Smoking Prohibition Bylaw in place.
Strata corporations need to be willing to enforce these bylaws by dealing appropriately with complaints of second-hand smoke, including following the bylaw enforcement procedure and applying for relief in Court if necessary. Failure to enforce the nuisance section of the bylaws may result in an owner bothered by smoke taking the position that the strata corporation has a statutory duty to enforce its bylaws and that the failure to enforce the bylaw is significantly unfair to him or her. As a result, the non-smoker could seek an order of the Supreme Court of British Columbia that the strata corporation enforce its bylaws. Section 26 of the Strata Property Act supports the concept that a strata council has a positive duty to enforce the strata corporation’s bylaws. It is recommended that legal advice be obtained before enforcing a nuisance bylaw.
3) Tobacco Control Act – See BC Laws section
4) Human Rights Code – See BC Laws section