REMEDIES FOR OWNERS UNDER THE STRATA PROPERTY ACT

A number of the people I speak with or represent are owners who are either displeased with some decision or action of the strata council/strata corporation or are the object of its "wrath". The question I am always asked is "What can I do about it?" Owners in such situations have several options open to them. (An individual owner will have fewer options available to him or her than will a group of owners). Before I review those options, I would like to point out a true but often overlooked fact of condominium disputes; they often involve fifty percent law and fifty percent politics. As a result the solutions sometimes involve a little of both.

Legal Options

1.   Sue the Strata Corporation
Section 163 of the Strata Property Act (the "Act") allows an owner to sue the strata corporation over any matter pertaining to the common property, the bylaws and rules, or an act or omission of the strata corporation. What the court can do about such matters is set out in Sections 164 and 165.

Section 164 allows the court to remedy a "significantly unfair" decision or action of the strata corporation or the strata council. (This can also be used to preempt an upcoming decision such as a proposed resolution). An owner who feels that they have been treated unfairly can apply to the court for relief. The key issue is whether or not the decision or action is "significantly unfair". One must turn to the case law for a definition of "significantly unfair" to determine what is or isn't significantly unfair. At present there are very few cases which interpret that term, thus its definition is still somewhat unclear.

Section 165 allows an owner to seek an order from the court that the strata corporation must perform a duty required of it under the Act, bylaws or rules. (An order that the strata corporation stop contravening the Act, bylaws or rules can also be obtained). Such an order can be useful where the strata corporation (whether via the council or the owners as a whole) refuses to do something such as repair the building. This section can also be used where the strata council refuses to enforce the bylaws. The court could order the council to fulfill its duty under section 26 of the Act and enforce the bylaw.

2.   Proceed to Arbitration
An alternative to the court process is arbitration. Arbitration is similar to a court proceeding but is less formal and thus more accessible to the lay person. The parties also get to choose the person or persons who will hear the dispute and make a decision. In theory it is meant to be faster and less expensive than a court proceeding, but often isn't. Section 177 of the Act sets out the type of matters which can be referred to arbitration. They include everything from disputes over the rules to the actions and decisions of the strata corporation. The decision of the arbitrator is binding on the parties and, pursuant to Section 189, enforceable as an order of the court.

3.   Appointment of an Administrator
Section 174 of the Act allows the court to appoint a third party to run the strata corporation's affairs in place of the strata council and the owners. The court can take some or all of the power away from the council and the owners. This option is good for owners who live in a self-managed strata corporation which is not being operated according to the Act. I have heard stories of strata councils deliberately choosing to ignore the provisions of the Act. In such an instance an administrator should be appointed.

Procedural Options

There are a number of provisions of the Act which can be used by owners (ideally a group of owners) in a "political" manner to resolve an unsatisfactory situation.

Section 27 of the Act allows the owners, by way of majority vote at a general meeting, to direct or restrict the actions of the strata council. This section is a good recourse for owners who wish to rein in an unruly strata council. It is also a way of taking a hands-on approach to strata management.

For minority owners who cannot get items on the agenda of a general meeting Section 43 of the Act is of use to them. It contains a provision whereby 25% of the owners can force the strata corporation to hold a general meeting to discuss and vote on a particular topic. This is useful where the council does not wish to properly deal with or consider an issue of importance to the owners.

A section which is useful to owners who feel they are being prejudiced by a bylaw which has been passed is Section 51. It allows for the reconsideration (ie. a new vote) of resolutions passed by 3/4 vote where less than 50% of the owners voted.

Section 135 is of particular importance to owners who find themselves the subject of a complaint regarding the violation of a bylaw or rule. That section requires that they receive written notice of the complaint (which must include the particulars of the complaint), a reasonable opportunity to answer the complaint and a right to request a hearing before the council before any action is taken. The hearing can be an important step in disputing a fine or other action taken by the strata corporation to enforce the bylaw or rule. If the rules of procedural fairness are not followed at the hearing it may be easier to challenge the decision in court. It may also be possible at the hearing to dissuade council from levying a fine or taking another course of action.

The bylaws of the strata corporation can also be of assistance to a disgruntled owner. Bylaw 29 of the Standard Bylaws provides for a voluntary dispute resolution process. This may be most useful for disputes between owners, but can be of assistance in a dispute with the strata council. The process is, however, voluntary and any decision resulting from it is not binding.

The Standard Bylaws also contain provisions for the removal of a strata council member. Standard Bylaw 11 allows for a council member to be removed by way of majority vote at a general meeting. (It may be necessary to rely on the provisions of Section 43 in order to call such a meeting).

This bylaw can also be used to remove the entire council should the owners seek to impeach them all.

Summary

Although these provisions are all useful to unhappy owners, the best tool for such an owner is a solid knowledge of the Act and of procedure (especially voting procedure). This can allow you to undertake political maneuvering and set the proper ground work for a legal challenge if necessary. Hopefully it will also lead to a more informed ownership and the better management of the strata corporation.

Shawn M. Smith is an associate lawyer with the law firm of Cleveland & Doan located in White Rock and may be reached at 536-5002. This article is intended for information purposes only and nothing contained in it should be viewed as the provision of legal advice.