ENFORCEMENT OF BYLAWS by Shawn Smith

Bylaws are an important tool for managing a strata corporation. They regulate the conduct of the occupants of the strata complex in an attempt to create an environment in which everyone can live comfortably. The ability to effectively enforce them is therefore extremely important. However, the proper steps are often not taken by the strata corporation and/or its property manager. This can lead to problems with upholding the "enforcement" steps taken (i.e. fines). Below is a brief review of the options available and the steps that need to be taken to ensure "due process" takes place.

Enforcement Options

Section 129 of the Strata Property Act (the "Act") allows the strata corporation to do one (or more) of the following things to enforce a bylaw or rule:

    (i)    impose a fine;
    (ii)    remedy a contravention; and
    (iii)    deny access to a recreation facility (the violation must relate to the recreation facility).

In addition, the strata corporation can seek injunctive relief against an owner tenant or occupant through court or arbitration. However, the conduct complained of must be fairly serious and other deterrents should be attempted first. The courts are reluctant to grant such relief unless it is absolutely necessary.

The strata corporation is also granted the power to evict tenants pursuant to the Residential Tenancy Act for violating bylaws, but only in exceptional circumstances. The tenant must have repeatedly or continually contravened "a reasonable and significant bylaw" in a manner that "seriously interferes with another person's use and enjoyment of a strata lot, the common property or a common asset". There are a number of preconditions that must be met before exercising this extraordinary remedy. First, the violation must be repeated or continuous. Second, the bylaw in question must be (on an objective basis) reasonable. Third, it must be "significant". Thus, all bylaws (regardless of their repeated contravention) will not permit use of this remedy. If the strata council terminates a tenancy without proper grounds and the owner loses a good tenant, damages might be awarded. This remedy should be used sparingly. Lastly, the violation must "seriously" interfere with another person's use or enjoyment of the complex. A mere annoyance is not enough.

Due Process

It is important for strata councils (and property managers) to be familiar with the "due process" provisions of the Strata Property Act. Of particular importance to the issue of bylaw enforcement is s.135.

Complaint, right to answer and notice of decision
135 (1) The strata corporation must not
    (a) impose a fine against a person,
    (b) a person to pay the costs of remedying a contravention, or
    (c) a person the use of a recreational facility for a contravention of a bylaw or rule unless the strata corporation has
    (d) received a complaint about the contravention,
    (e) given the owner or tenant the particulars of the complaint, in writing, and a reasonable opportunity to answer the complaint, including a hearing if requested by the owner or tenant, and
    (f) if the person is a tenant, given notice of the complaint to the person's landlord and to the owner.

    (2) The strata corporation must, as soon as feasible, give notice in writing of a decision on a matter referred to in subsection 1(a), (b) or (c) to the persons referred to in subsection (1)(e) and (f).

    (3) Once a strata corporation has complied with this section in respect of a contravention of a bylaw or rule, it may impose a fine or other penalty for a continuing contravening of that bylaw or rule without further compliance with this section.

This section makes it quite clear that a strata council cannot simply impose a fine against a person. There are certain steps that must first be taken. If not, the fine (and any other steps taken) are not valid. It is possible that a court would simply extinguish any such fine as a result of the proper steps not having been taken.

When strata corporations receives a complaint about a bylaw or rule violation, they must first write to the offending party and provide details about the complaint. The Act is not clear as to what these details must be. Presumably it is date, time, place and nature of the violation. There is nothing that says that the complainant must be identified and I would suggest that it is good practice not to do so. (However, since any owner can request to see copies of correspondence sent to the strata corporation this practice only offers a minimal degree of protection for the complainant). The complaint does not need to be in writing, but rules should be made for verbal complaints. Note should also be taken of the requirement to send both the landlord and the owner a copy of any complaint against a tenant.

The letter must also set a deadline for providing an answer to the complaint. The "accused" is to be allowed a reasonable time to do so. Two weeks is probably sufficient (given that this is the time frame used for a number of other deadlines under the Act). Extensions can be granted but shouldn't unless the matter is complex or an opportunity to consult with legal counsel is requested. A short time line should be kept.  The strata council must then consider the reply and make a decision "as soon as feasible". A couple of days after the next council meeting (assuming they are monthly) is likely appropriate.

The "accused" can also request a hearing before the council. If this occurs, the bylaws must be consulted to determine the time frame in which a hearing is to be held. The Standard Bylaws (number 15) requires the hearing to be held within one month of the request and a decision to be issued one week after the hearing. In this instance a hearing is an opportunity to appear in person before the council and argue against the complaint. Presumably both oral and documentary evidence are acceptable. The Act does not require the person making the complaint to be present and available for cross-examination. One might well argue that the rules of Natural Justice would seem to dictate that this is appropriate (albeit not necessarily practical). The seriousness of the allegations will dictate whether or not this is appropriate or necessary.

In either case, the strata council will have to make a decision as to whether or not the bylaw was contravened. In doing so the council must make sure they follow the rules of Procedural Fairness. If not, then they risk having any decision(s) they make being overturned. This means that those persons making the decision must not have any bias against the "accused"; must not have a direct personal interest in the matter; must not have made a decision in advance; and must allow the "accused" an opportunity to present his or her case. If not, the court may very well consider any decision made to be "significantly unfair" and overturn it pursuant to s.164 of the Act.

Once the period for reply has passed or the strata council makes a ruling, steps may be taken to enforce the bylaw. This includes levying a fine and/or requiring the offender to pay the cost of remedying a contravention. (Before the strata corporation takes steps to remedy a contravention, it may want to first consider the cost of doing so. If it turns out that the offender cannot be charged, the strata corporation as a whole must bear the cost). If the violation is a continuing one (i.e. a rental bylaw violation) then future fines for the same violation can be imposed without further compliance with the procedural steps of s.135.

Shawn M. Smith is an associate lawyer with the law firm of Cleveland & Doan located in White Rock and may be reached at 604-536-5002. This article is intended for information purposes only and nothing contained in it should be viewed as the provision of legal advice.