Bare Land Strata - FAQs
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, which 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 However the covenant can be struck out if it is obsolete, if there is no practical benefit to the parties to it, there is an implied agreement to cancel it or if it is invalid or unenforceable (s. 35 Property Law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, which are associated with bare land strata corporations to ensure that the terms of such a scheme are met. Care should be taken 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 do so, which it arguably doesn't. However if it did then the court could order a 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 to vote on whether or not to do so. A 3/4 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 take steps on their own to enforce it.
5. Can a strata corporation enact a bylaw, which 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 when a bylaw is "significantly unfair" to an owner.