A LOOK BACK; A REFLECTION ON THE 5^TH ANNIVERSARY OF THE STRATA PROPERY ACT

Not only will this July 1 be the 138^th anniversary of Confederation, it will be five years since the introduction of the Strata Property Act (the “SPA”). I felt it a good time to pause and look at how the SPA has changed strata living and what we have learned from and about it.

The SPA, it was hoped, would resolve a number of the problematic issues of strata corporation life and provide greater clarity than its predecessor, the Condominium Act. Overall I think it has done that. Certainly, the drafters of the SPA took more care to craft it language. Clearly a great deal of thought went into the substantive provisions (finances, sections, meetings, etc). I think it was an improvement and has proved itself as such.

However, no matter how hard one might try to address all the possible problems, situations and scenarios, ones you never thought of will arrive. The SPA, like most other legislation, is a living document. It must be adapted and molded to fit the fluid circumstances of life. This has been the job of the courts as they have interpreted and applied the SPA over the past five years. In a number of cases this has been for the better. In others, it has not.

One the best refinements in my mind, has been establishing a definition of “significant unfairness” which is used under s.164 of the SPA. In Reid v. Strata Plan LMS2503 (2001)(BCSC), the court defined that term as:

“at the very least, significant unfairness encompasses both oppressive and unfairly prejudicial conduct as defined in the Condominium Act cases i.e. conduct which is burdensome, harsh, wrongful, lacking in probity or fair dealing, or has been done in bad faith, and/or has been unjust or inequitable”

The decision in Gentis v. Strata Plan VR 368 has clarified this further by holding that significant unfairness must be assessed in light of all the circumstances and in particular the balancing of the competing interests within the strata corporation.

These two decisions have set the groundwork for a number of important cases that have helped define the extent of the strata corporation’s decision-making authority.

One area of contention which remains (and will hopefully be addressed by future legislative changes) is the apportionment of strata corporation expenses. Although section 99 and Regulation 6.4 appeared to have clarified this, a number of decisions surrounding “types” of strata lots and allocation of building envelope repair costs, have “muddied the waters” further. The allocation of expenses (or more correctly the contribution toward them) is arguably less clear. Hopefully future legislative amendments will settle the numerous conflicting decisions.

Repair and maintenance remains an area of importance to both owners and the strata corporation. The Standard Bylaws have clarified the subject of doors and widows, by making it clear that the strata corporation is responsible for the repair and maintenance of the same. (Some controversy remains as to whether or not owners can be made responsible for the entirety of the same). The definition of common property, when it comes to pipes and cables, still poses difficulties. This is because the question of whether or not pipes are common property still depends on their location or the nature of their use. Great clarity would result from simply defining all pipes as common property.

The SPA has made the duties and responsibilities of the strata corporation, and in particular the strata council, much clearer. Section 26 of the SPA has made enforcement of the bylaws mandatory. This should give owners much more confidence that councils will act in a consistent and timely manner. The application of bylaws and rules should be uniform since the council has no power to waive compliance.

One of the most useful sections when it comes to giving owners more control is section 27 that permits the owners, by majority vote, to direct or restrict the council in its actions. This is often used where a reluctant council will not, on its own, accede to the will of the majority. I can see it being used more and more as a creative solution to overcoming deadlocks.

The most hotly contested issues continue to be rentals, pets and age restrictions. They remain so because of their significant impact and always will. Strata corporations are becoming more skilled at dealing with these issues and more willing to get the proper assistance and advice to deal with them.

What is in store for the future? That of course is always hard to say. I can see repair and maintenance issues (especially in strata corporations with different types of strata lots) continuing to be a major source of conflict as buildings age. (Proper long term planning can lessen the negative effects however). Conflicts between neighbours will likely increase given the pace and stress of life and the close proximity of strata living. Some give and take, a proper understanding of strata living and civility will assist in making such conflicts less common and less severe. The next “frontier” will be Human Rights complaints. These have become far more prevalent in even the last year. Owners are now finding this as a means to get around bylaws and rules that don’t suit them. Strata corporations are now having to consider the provisions of Human Rights legislation at almost every turn, and when complaints are filed, having to defend them (often at great expense). It is my view that much of the key case law for strata corporations to be made in the next five years will be made in this forum. In five years, we’ll see if I am right.

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. He practices primarily in the area of strata property law. He is Honourary Legal Counsel for the Pacific Condominium Association and frequently lectures to its members. This article is intended for information purposes only and nothing contained in it should be viewed as the provision of legal advice.