railtown law strata law information session
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TRANSCRIPT
STRATA LAW INFORMATION
SESSION
Presented by Vivienne Stewart, B.A., J.D., LL.M
Burnaby Public Library, November 14, 2016
Rights and Obligations of a Strata
Owner/Tenant
• Follow and comply with your Strata’s bylaws and rules, if the Strata
has rules.
• Bylaws govern strata lots & common property (including limited
common property & common assets).
• Rules only govern common property (including limited common
property & common assets).
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What Happens if Rules and
Bylaws are Inconsistent?
• If a rule is inconsistent with a bylaw, the bylaw will govern.
• If a rule appears to govern a strata lot, it is invalid.
• No bylaw or rule is enforceable to the extent that it contravenes the
Strata Property Act, the regulations, the Human Rights Code (except
age restrictions bylaws in certain cases) or any other enactment or
law.
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Being a Good Neighbour…
Dispute Resolution Techniques
• Have a non-confrontational discussion:
• Ask open-ended questions.
• Find out more information.
• Ask council or a council member to mediate the dispute.
• Look for a resolution through the Civil Resolution Tribunal’s (CRT)
online Solution Explorer platform.
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Dispute Resolution Techniques…
If You Need to Escalate
• Make a complaint to council about someone else’s violation of a
bylaw or rule.
• Remind council members of their duty to enforce the bylaws.
• Council may give the offender a warning, time to comply, and then,
follow the enforcement procedures in the bylaws, including imposing
fines.
• Council is also entitled to use the services of the CRT: negotiation,
facilitation, adjudication (binding decisions).
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Enforcing Bylaws (1)
• Bylaws passed and amended by a ¾ vote of the owners (rules are
created by the strata council and ratified by majority vote of the
owners – they must be in writing and capable of being photocopied).
• Bylaw amendments have no effect until they are filed in the land titles
office (rules generally take effect immediately and continue once they
are ratified).
• Strata council has no discretion to choose not to enforce a bylaw.
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Enforcing Bylaws (2)
• Standard Bylaw 20(4) – the strata council may not
delegate its powers to determine: whether a person has
violated a bylaw or rule, whether the person should be
fined, the amount of the fine, or whether the person
should be denied access to the strata gym, pool or other
facility. Unless the Strata has amended this bylaw, it is not
appropriate to delegate these decisions to the strata
manager.
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Enforcing Bylaws (3)
• Council may decide to fine an owner or tenant for violating a bylaw
or rule. An owner or tenant may also be held responsible for
violations by their guest(s) or some other occupant of their strata lot.
• In exercising their discretion to enforce a bylaw, council must be
reasonable and fair.
• If it is a council member who is personally involved, that council
member must fully disclose his/her involvement and leave the
meeting before the matter is discussed or voted on by council.
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Enforcing Bylaws (4)
• Once council determines that there has been a contravention of a
bylaw, council should invoke the Act’s enforcement procedures – before
doing so, council may give a person a warning or time to comply.
• The Strata may do what is reasonably necessary to remedy a
contravention of a bylaw or rule, including doing work on a strata lot,
common property or common assets and removing objects from the
common property or common assets.
• The Strata may require the person responsible to pay the Strata’s
reasonable costs of remedying the contravention.
• If the person refuses access, the Strata may obtain a court order
(take the peaceful, albeit lengthier route).
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Enforcing Bylaws
The Rules of Natural Justice• The rules of natural justice will apply to enforcement and are set out
in the Act:
• The person accused of the contravention must be notified with the
particulars of the complaint (excluding personal information of third
parties)
• The person must be given an opportunity to attend before council
and to be heard.
• The person is also entitled to a written decision.
• The steps outlined above must be followed before the Strata can
impose a fine (refer to s.135).
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Enforcing Bylaws
Fines
• The maximum amount an owner or tenant may be fined is usually set out
in the bylaws.
• If not, the standard bylaws set maximums at $50 for each bylaw
contravention and $10 for each rule contravention.
• The maximum amount and frequency is capped in the regulations -
$200 for each contravention of a bylaw, every 7 days.
• The maximum amount for contravening the rental bylaw is $500 for
each contravention.
• If aggregate amount of fines is substantial, the courts may not award
the full amount.
• The purpose of fines is to discourage violations, not to correct, remedy
or cure violations.
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Council Members’ Duties and
Responsibilities
• The Act sets out the standard of care that a strata council member
has to meet, including enforcing the bylaws and rules.
• Must act honestly and in good faith with a view to the best interests of
the strata corporation.
• Must exercise the care, diligence and skill of a reasonably prudent
person in comparable circumstances.
• Tips for council members:
• Read and be familiar with your bylaws and rules.
• Become familiar with other resources available to assist with
making the appropriate decisions and meeting members’ duties.
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Role of the Property Manager (1)
• Stratas often hire property management companies to assist in the
management and administration of the Strata’s business.
• Strata manager is licensed and is bound by the provisions of the Real
Estate Service Act and the Real Estate Council Rules. They are
generally not lawyers and not entitled to give legal advice.
• Council delegates some duties and responsibilities to the strata
manager by contract.
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Role of the Property Manager (2)
• Council members must be aware that it is the council that instructs
and directs the strata manager, not the other way around.
• A strata manager must advise the council to obtain independent
professional advice on matters outside the expertise of the strata
manager.
• The role of the strata manager is to help to manage the property and
no more.
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Strata Managers…
What to Watch Out For
• A council must be wary of a strata manager who seems to be making
decisions for council and then persuading council to agree.
• A council must also question the advice of a strata manager when
dealing with violations, enforcement and fines.
• Council has a great deal of power which it should be careful not to
abuse and not to allow the strata manager to abuse.
• When in doubt – use your common sense, put yourself in the other
person’s shoes, and act in a fair and reasonable manner.
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Insurance Obligations (1)
• All owners and tenants should have insurance covering their property
and liabilities not covered by the Strata’s policy.
• If there is a water leak that occurs from pipes within your unit (or
your tub or shower, etc.), and it causes damage to someone else’s
unit or to the common property, your insurance will have to pay for
it.
• Often disputes arise over what causes a leak and where it was
located.
• If in the walls between units or between a unit and common
property, Strata should be responsible.
• Pinhole leaks in older pipes often cause problems.
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Insurance Obligations (2)
• If you replace or alter something within your unit that causes damage
to someone else’s strata lot or to the common property, you will be
responsible so it’s prudent to have coverage for this.
• It’s in your best interest to take a look at your Strata’s insurance
coverage and to know what the deductibles are.
• Many Stratas now have deductibles for water damage that are well
over $10,000, which means that claims below this amount will be
the owner’s responsibility.
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Rentals
• Many Stratas have rental restriction bylaws which:
• Prohibit rentals.
• Limit the number of percentage of strata lots that may be rented or
• Limit the period of time a residential strata lot may be rented.
• Rental prohibition bylaws do not apply to any residential strata lot until
either one year after the expiry of an existing residential tenancy, or
one year after the date the bylaw was passed, whichever is later.
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Rentals
Hardship Exemptions (1)
• The Act provides an exemption from these kinds of bylaws on the ground that
the bylaw causes hardship to an owner.
• The owner has to apply in writing and state:
• The reason the owner thinks the strata lot should be exempt; and
• Whether the owner wants to have a hearing.
• The strata must hold the hearing within 4 weeks after the date the hardship
application is given to the Strata – a hearing is in person at a council meeting.
• If the strata fails to meet the deadline, the owner is automatically entitled to
rent the unit out.
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Rentals
Hardship Exemptions (2)
• After a hearing, the Strata must provide its decision in writing within
one week of the date of the hearing or the owner is allowed to rent.
• If the owner does not ask for a hearing, the Strata has to give its
written decision within 2 weeks after the application is given to the
Strata or the owner is allowed to rent.
• The Strata may limit the period of the exemption as part of its
decision but it must not unreasonably refuse to grant the exemption.
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What Constitutes Undue Hardship?
• Depends on the facts and circumstances of each situation.
• The inability to sell, is not on its own, hardship.
• Consideration is given to the following:
• Unable to get insurance because unit is vacant.
• High cost of property management.
• Substantial decrease in sale value because of new rental ban and
value of unit is all or substantially all of the owner’s assets.
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Civil Resolution Tribunal (1)• The Solution Explorer is a self-help tool and provides free legal
information and problem diagnosis.
• Intelligent questionnaire that provides templates of letters you can
send to the Strata or that the Strata can send to owners or tenants –
designed for specific problems.
• One of the first steps to take before actually filing a CRT claim is to
ask for a hearing from the strata council – template letters are
available for download.
• If hearing with strata council doesn’t work, you can start a dispute -
$125 fee to file your claim.
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Civil Resolution Tribunal (2)• Only an owner or a tenant can make a claim, not an occupant.
• CRT notifies opposing party of claim. Then the parties attempt to
negotiate a solution to their dispute.
• If negotiation fails, facilitation is the next step. A CRT facilitator gets
involved to try to help the parties reach an agreement. (Agreements
can be turned into orders which have the same power as court
orders.)
• If facilitation fails, an independent CRT member will make a decision
based on information provided by both sides. The decision is
enforceable like a court order.
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