Frequently Asked Questions about Condominium Living

1. Can a strata corporation force a municipal government to enforce the terms of a covenant registered against the common property?

Most covenants filed against title to the common property are requirements of the municipal government as part of the development of the strata complex. They range from siltation control to clubhouse construction and everything in between. Most of the covenants contain a clause that exempts the municipal government from enforcing the covenant. The municipal government may very well do so if asked, but it cannot be forced to.

2. Can a strata corporation enforce the terms of a covenant registered against the common property?

The answer is yes. A party who benefits from such a covenant may seek the assistance of the court in enforcing its terms. A petition must be filed with supporting affidavit material. Once all parties who need to be served with the petition have been so served and have filed reply material, the court will then hear the matter and grant or refuse the order sought.. However, the covenant can be struck out if it is obsolete, if there is no practical benefit to the parties to it, there is an implied agreement to cancel it or if it is invalid or unenforceable (s.35 Property Law Act). This is often the defense to such an action.

3. Can a strata corporation enact a bylaw which incorporates the terms and conditions of a covenant?

Yes it can. This is often done with statutory building schemes that are associated with bare land strata corporations to ensure that the terms of such a scheme are met. Care should be takes to ensure that the bylaw does not conflict with the covenant. The bylaw can, however, supplement the terms of the covenant.

4. Can an owner force the strata corporation to enforce the terms of a covenant?

It is unlikely that an owner could force the strata corporation to enforce the terms of a covenant. First of all the strata corporation would have to have a statutory duty under the Strata Property Act to so do, which it arguably doesn’t. However, if it did then the court could order the strata corporation to do so pursuant to its powers under s.165 of the Strata Property Act. An owner seeking to cause the strata corporation to enforce a covenant would have to get a special general meeting called to vote on whether or not to do so. A ¾ vote under s.171 of the Strata Property Act would be required. Sometimes the covenant also charges the owner’s strata lot. In that case they are a party to it and can takes steps on their own to enforce it.

5. Can a strata corporation enact a bylaw that restricts what an owner can do to or with their strata lot and/or their limited common property?

Most definitely yes! Section 119 of the Strata Property Act permits the strata corporation to enact bylaws for the “control, management, maintenance, use and enjoyment of the strata lots [and] common property”. Bylaws which regulate what an owner can do with their strata lot, place on their lawns and construct on or adjacent to their home can be enacted and are valid. Owners in a strata corporation subject themselves to the bylaws and rules enacted by the owners as a whole. A degree of freedom is surrendered when one moves into a strata corporation. However, section 164 of the Strata Property Act allows the court to intervene where a bylaw is “significantly unfair” to an owner.

6. Is an owner who purchaser before a bylaw was enacted exempt from its effects?

The Strata Property Act does not provide for a general grandfathering of owners from the effects of bylaws passed after they purchased their strata lot. There are specific grandfathering provisions with regard to rental, pet and age restriction bylaws, but no others. However, in Strata Plan NW243 v. Hansen [1996] B.C.J. No. 2201 and Winchester Resorts Inc. v. Strata Plan KAS 2188 (2002) 4 BCLR (4^th) 390 the court held that bylaws did not have retroactive effect where an owner had constructed something before the bylaw was enacted. However, these cases should not be taken to support the proposition that all bylaws do not have retroactive effect. In Strata Plan No. VR 333 v. Nunns (1981) 21 RPR 240 the court held that a bylaw can have retrospective effect if the bylaw so states. The proper view is that in most cases they do. Once again the significantly unfair argument under s.164 of the Strata Property Act can be used to protect owners from oppressive bylaws.

7. How can I get a copy of the Personal Information Protection Act?

You can get it from the Queen's Printer in Victoria or you can download it from the web at www.mser.gov.bc.ca/foi_pop/

8. We are revising (or writing) our bylaws. Where can we get advice?

This Association (The Pacific Condominium Association of B.C.) has helped many strata corporations in the preparation of their bylaws. This is one of the free services that the Association provides. We can show you bylaws from typical strata corporations that will assist you in preparing yours.

Our advice is, of course, not to be taken as legal counseling. After your Council has prepared a draft of your bylaws we strongly recommend that you take it to a lawyer who specializes in condo law for his/her review. The cost will depend on the amount of services provided by the lawyer and his fee structure but it has been our experience that a straightforward review will cost in the order of a few hundred dollars.

The response were prepared by Shawn M. Smith, an associate lawyer with the law firm of Cleveland & Doan located in White Rock and may be reached at 604-536-5002. The responses are intended for information purposes only should be viewed as the provision of legal advice.