A MAN’S HOME IS NOT ALWAYS HIS CASTLE

The old adage that “a man’s home is his castle” doesn’t always apply in the world of strata living. As those who live in strata corporations well know, one surrenders a degree of freedom when one comes to live in a strata complex. A question of great consequence and concern to many owners is exactly how much freedom they have to surrender. In this article I intend to review the extent of the control a strata corporation can exercise over a strata lot.

The starting place for an analysis of this subject lies with s.119(2) of the Strata Property Act. That section provides:

“The bylaws may provide for the control, management, maintenance, use and enjoyment of the strata lots, common property and common assets of the strata corporation and for the administration of the strata corporation.” [Emphasis added]

From the wording of this section it is clear that the strata corporation has been given, by the legislature, control over strata lots. It can pass bylaws that govern the “control, management, maintenance, use and enjoyment” of a strata lot. The scope of the strata corporation’s jurisdiction is quite sweeping. Bylaws can be enacted which determine how one can use their strata lot (i.e. no commercial enterprises may be operated out of a residential strata lot), what one can do in their strata lot (i.e. do not cause a nuisance to your neighbour or unreasonably interfere with their enjoyment of their strata lot), and which obligate you to keep your home in good repair (i.e. an owner must repair and maintain their strata lot).

The courts have been supportive of the power of a strata corporation to regulate to use of strata lots. In Kok v. Strata Plan LMS 463 (1999), 23 R.P.R. (3d) 296 (BCSC) bylaws regulating the type of business which may be carried out in a commercial strata lot were upheld. In Strata Plan VIS 4663 v. Little, [2000] BCJ No. 777 (BCSC) bylaws restricting bare land strata lots to campground use and setting guidelines for the construction of improvements such as patios and awnings were upheld.

In other places the Strata Property Act grants the strata corporation the power to regulate specific issues that pertain to strata lots. Examples of this are:

s. 72(3) The strata corporation, by bylaw, can take responsibility for the repair and maintenance of specified portions of a strata lot.

s.122 The strata corporation can govern activities related to the sale of a strata lot.

s.123(1) The strata corporation may prohibit the keeping of a pet in a strata lot.

s.123(2) The strata corporation may restrict the age of a person who may occupy a strata lot.

s.138 The strata corporation may evict a tenant (provided certain conditions are met).

s.141 The strata corporation may restrict or prohibit the rental of strata lots.

Bylaws enacted pursuant to or actions taken under these sections, provided that the technical requirements of the sections and the Strata Property Act are complied with, are essentially immune from attack. Owners must submit to the authority of the strata corporation in such cases.

Fear not however. The legislature has placed checks and balances within the provisions of the Strata Property Act in order to limit the power of the strata corporation.

Firstly, the strata council (which can enact Rules on its own) cannot enact a rule that governs a strata lot. Rules can only apply to the common property and common assets of the strata corporation (see s.125 of the Strata Property Act). The passage of a bylaw must be done by way of a ¾ vote at an annual or special general meeting. In other words, it is subject to the democratic will of the majority (so to speak) and not of a select few.

Secondly, s.164 of the Strata Property Act permits owners who feel that a bylaw goes to far to apply to the court for relief. (Similar provisions exist within the arbitration provisions of Division 4 of Part 10 of the Strata Property Act). Where a decision of the strata corporation (i.e. The passage of a particular bylaw) is “significantly unfair” to one or more owners, the court can provide relief. (The court has held that “the meaning of the words "significantly unfair" would at the very least encompass oppressive conduct and unfairly prejudicial conduct or resolutions. Oppressive conduct has been interpreted to mean conduct that is burdensome, harsh, wrongful, lacking in probity or fair dealing, or has been done in bad faith. "Unfairly prejudicial conduct" has been interpreted to mean conduct that is unjust and inequitable”). Not every decision that one disagrees with or that inconveniences them will be ruled as being significantly unfair, however.

Thirdly, s.121 provides that a bylaw is “not enforceable to the extent that” it:

(a) contravenes the Strata Property Act, the regulations to the Act, the Human Rights Code or any other enactment or law;

(b) prohibits or restricts the right of an owner to sell, lease or otherwise dispose of a strata lot (the restriction of rentals being exempt from this).

The aspect of compliance with the Human Rights Code has become more prevelant in the last couple of years. A multitude of complaints have been lodged against strata corporations under the Code. Consider whether restrictions on pets, smoking, the number of people who may live in a strata lot, etc., may be considered violations of the Code. If they are, this places a limitation on the scope and extent of the strata corporations’ power to regulate the use of strata lots.

An issue, which is often a source of great contention, is the ability of a representative of the strata corporation (whether it be a council member or the property manager) to enter a strata lot. The Strata Property Act does not specifically address this (except by way of Standard Bylaw 7), but presumably the power to do so arises out of s.119(2). This is the section that would permit the creation of Standard Bylaw 7 or any similar bylaw enacted by the strata corporation. Standard Bylaw 7 provides:

7 (1) An owner, tenant, occupant or visitor must allow a person authorized by the strata corporation to enter the strata lot

(a) in an emergency, without notice, to ensure safety or prevent significant loss or damage, and

(b) at a reasonable time, on 48 hours' written notice, to inspect, repair or maintain common property, common assets and any portions of a strata lot that are the responsibility of the strata corporation to repair and maintain under these bylaws or insure under section 149 of the Act.

(2) The notice referred to in subsection (1) (b) must include the date and approximate time of entry, and the reason for entry.

Such a bylaw is unquestionably a necessity in a strata corporation. Access must be available in an emergency (i.e. water overflow) and in order to facilitate repair and maintenance of the common property. An important question becomes, can the strata corporation go further than this? Can it require that access keys be provided? Can it enter to inspect for bylaw violations? The answer is twofold. Yes, but only if a bylaw to that effect exists (a rule will not suffice) and such a bylaw is not ultra vires (beyond the power of the strata corporation to enact) and does not contravene s.121 of the Strata Property Act (i.e. complies with the Act and the Human Rights Code).

It is not clear whether a bylaw requiring owners to give keys to the strata corporation is beyond the scope of its powers, but the strata corporation must be aware of the potential liability arising from such a bylaw. If the keys are lost or misused while in the possession of the strata corporation and items are taken from a strata lot, the strata corporation (depending on what steps were taken by it to safe guard the keys) may be found liable for such loss.

As for the right of the strata corporation to access a unit to inspect for bylaw compliance, it is the writer’s opinion that such a bylaw is of value to a strata corporation. Otherwise, its ability to effectively enforce the bylaws is hampered. Notice of course would be required prior to entry to inspect. A court is unlikely to criticize such a bylaw unless it is abused. If that were the case, a court is more likely to address the conduct than strike down the bylaw.

As can be seen, the strata corporation can exercise a good deal of control over an owner’s use of their strata lot. The key to harmonious living is to find the balance between the strata corporation’s powers and the owner’s right to make his or her home their castle.

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. 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.