CURRENT BYLAWS: WHAT APPLIES AND WHAT TO CHANGE

by Adrienne Murray, Deputy Superintendent of Real Estate

Strata corporations should consider the approaching deadline of January 1, 2002 to examine each bylaw to ensure that not only is it compatible with the new legislation, but also that it is appropriate for the needs and life style of the strata lot owners.

When and how the Standard Bylaws of the Strata Property Act apply to existing strata corporations can be very confusing. Additionally, a number of questions such as "must a strata corporation accept the new Standard Bylaws" and "is a strata corporation prevented from amending its bylaws now" are also adding to the confusion for a number of strata owners and strata councils. I hope the following will eliminate the confusion.

Most strata corporations that were created before July 1, 2000 have the Part 5 bylaws of the Condominium Act. Of these strata developments, some have kept the Part 5 bylaws without amending them or creating new bylaws. Other strata corporations, on the other hand, have amended some or all of the Part 5 bylaws and may have created entirely new bylaws.

For strata corporations that have only the Part 5 bylaws, the Standard Bylaws of the Strata Property Act will replace those bylaws on January 1, 2002. From now until January 1, 2002, the Part 5 bylaws will continue to apply to these strata corporation. On January 1, 2002, the Part 5 bylaws will no longer apply, and the new bylaws take effect. Between now and January 1, 2002, strata corporations in this position should examine the Standard Bylaws of the Strata Property Act to ensure that the bylaws they will adopt on January 1, 2002 are appropriate for their circumstances. Particular attention should be paid to pets, voting, expense-sharing and limited common property repair as explained below.

Strata corporations that amended the Part 5 bylaws or created new bylaws will also have their Part 5 bylaws replaced with the Standard Bylaws effective January 1, 2002. However, for these strata corporations the transition to the new bylaws is slightly more complicated. The Part 5 bylaws that were not amended will be replaced by the Standard Bylaws. Additionally, the amendments and new bylaws must be considered to determine whether they will continue to apply and whether they will override the Standard Bylaws. The amendments or newly created bylaws will override the Standard Bylaws unless, the amendments or newly created bylaws conflict with the Strata Property Act, Regulations, or other legislation.

The following examples illustrate how amended or newly created bylaws will be affected by the Strata Property Act and how they can affect the Standard Bylaws.

Amendments contrary to the Strata Property Act

A strata corporation may have amended bylaw 126 of the Part 5 bylaws to provide that a proxy holder may only be the strata manager. The Regulations to the Strata Property Act do not provide that a strata manager may be a proxy holder. The amended bylaw conflicts with section 56 of the Strata Property Act.

As a further example, a strata corporation may have passed a bylaw which provided that where an owner caused damage that resulted in an insurance claim, that owner is responsible for paying the insurance deductible. This bylaw conflicts with section 159 of the Strata Property Act.

Therefore, effective January 1, 2002, neither bylaw would be effective.

Amendments that override the Standard Bylaws

A strata corporation may have amended bylaw 119 of the Part 5 bylaws to provide that a vacancy on the council may only be filled by an election of a new council member. (119 provided that the vacancy could be filled by the remaining members of Council.) Section 12 of the Standard Bylaws provides that the remaining members of Council may appoint a replacement council member for any person eligible to sit on the Council.

The amended bylaw does not conflict with the Strata Property Act, Regulations, or any other legislation. The amended bylaw does however, alter a provision of the Standard Bylaws. The amended bylaw will remain in force, and portions of section 12 of the Standard Bylaws relating to the appointment of a Council member will not apply.

Review Procedure

To prepare for January 1, 2002, a strata corporation should:
determine exactly what bylaw amendments have been filed at the Land Title Office
review the amendments to determine if any of the amendments conflict with the Strata Property Act, Regulations or other legislation. Those amendments that do conflict will no longer apply after January 1, 2002
compare the remaining amended bylaws with the Standard Bylaws to determine which of the Standard Bylaws will be overridden by the existing amendments
examine the remaining Standard Bylaws to determine whether all remaining Standard Bylaws should apply to the strata corporation amend or
create new bylaws.

A strata corporation may begin the process of reviewing bylaws and passing new bylaws at any time. It is not necessary to wait until after January 2002 to consider the impact of the new bylaws. However, the Standard Bylaws do not apply automatically until January 1, 2002. Thus any amendments that are made to bylaws between now and January 1, 2002 should keep this in mind.

A strata corporation is free to amend, dis-apply, or replace all the Standard Bylaws. After following the above process, a strata corporation may wish to amend or dis-apply certain bylaws or create entirely new bylaws.

Strata corporations should specifically consider the following bylaw matters:

Pets

The new Standard Bylaw 3(4) permits different kinds of pets to be kept, but limits their numbers.

The Part 5 bylaws did not contain a bylaw that restricted the number of pets that may be kept in a strata unit; if a strata corporation has not filed an amendment relating to pets (which would override the Standard Bylaws), the strata corporation will adopt the Standard Bylaw relating to pets on January 1, 2002.

A strata corporation that does not want to limit the number of pets may wish to file an amendment to dis-apply Standard Bylaw 3(4).

Expense Sharing by Type

Unlike the Part 5 Bylaws, the new Standard Bylaws do not contain a bylaw that permits strata corporations to share common expenses on the basis of type of strata lot.

Thus, effective January 1, 2002, a strata corporation that had been relying on the Part 5 bylaws to allocate expenses by type would not be permitted to continue to do so unless a new bylaw is filed at the Land Title Office permitting such allocation.

The Regulations permit such strata corporation to pass a bylaw permitting expense sharing on the basis of type by majority vote, rather than a 3/4 vote between July 1, 2000 and January 1, 2002. After January 1, 2002, a strata corporation may only pass such a bylaw by a 3/4 vote.

Eligibility to Vote if Strata Fees Unpaid:

Unlike the Part 5 Bylaws, the new Standard Bylaws do not contain a bylaw that restricts an owner from voting if his or her strata fees are unpaid. Thus, effective January 1, 2002, a strata corporation that relied on the Part 5 bylaw may no longer limit voting in such a way unless a new bylaw is filed at the Land Title Office.

Repairing and Maintaining Limited Common Property

The Standard Bylaws make owners responsible for maintaining and repairing all limited common property that the Strata Corporation does not have to maintain and repair. Strata corporations may wish to pass their own bylaw dealing with the repair and maintenance of limited common property, if they do not wish the Standard bylaws relating to limited common property to apply after January 1, 2002.