When should I see a lawyer about my condo problem?

Harvey Williams, VISOA Board Member

Have a question about managing your strata corporation? Ask us, we've had a lot of experience helping strata corporations solve problems, perhaps we can help you. Questions may be rephrased to conceal the identity of the questioner and to improve clarity when necessary .We do not provide legal advice and our answers should not be construed as such. However, we may, and often will advise you to seek legal advice.

When should you see a lawyer about a problem in your strata corporation? The flippant answer is, whenever you need to. But flippant answers, no matter how true,

are insulting and not much help to someone concerned about events in their strata. Not surprisingly, there is no definitive answer to the question, "When should I see a lawyer?" But there are many times when condo owners should see a lawyer, but do not.

Why don't more condo owners seek legal assistance when they are confronted by an uninformed or irresponsible strata council, a domineering council president, an incompetent strata manager, an unscrupulous developer, or, too often, an abusive fellow owner. Such situations can transform what should be an enjoyable, carefree condo-lifestyle into a nightmare. Perhaps they prefer to suffer in silence rather than make waves, are unaware of their rights and responsibilities under BC's Strata Property Act or are concerned about legal fees.

While the Strata Property Act (SPA) is a reasonably complete and fair set of rules and regulations governing strata corporations, it is self-enforcing. That is, there is no public agency that polices strata corporations and enforces the SPA. It is up to strata owners themselves to work out their differences under the provisions of the SPA. When that fails, the only recourse is to seek arbitration or to appeal to the Supreme Court of British Columbia. Most of the time, most owners and most strata corporations comply with the SPA and resolve their differences amicably through cooperation and compromise.

But sometimes compromise does not come easily, and that is the time when VISOA can be of assistance. But VISOA does not, cannot, and should not, give legal advice nor attempt to resolve issues of law. When conciliation and compromise fail or legal questions divide, it is time to call on the services of a lawyer.

Conflicts in strata corporations often arise as a result of differing interpretations of a provision in the SPA.. In such cases, a letter from a lawyer providing a legal opinion or interpretation may be sufficient to resolve the issue. An example that comes to mind is a conflict over locker size that occurred just prior to the proclamation of the SP A. An owner with a larger than average suite in the building, and an even larger ego, claimed that his locker size should be in proportion to his unit entitlement. Accordingly, he was entitled to a larger locker. After many months of wrangling and hard feelings among owners, a telephone call to a lawyer by a strata council member revealed that there was no such requirement.

In another case, a strata owner removed soundproofing material that was installed at the time an apartment block was converted to a strata corporation. Research by the lawyer revealed that if the insulation was structural, it was common property, if not, it was part of a suite and raised such fine points as the difference between "structure" and "structural". Fortunately, common sense eventually prevailed and the case was settled to the satisfaction of the then- owners of the two suites. But a bit of uncertainty -too legally complex to discuss here -remains and the case continues to simmer. When either of the suites changes hands, it could boil over again, in which case, it will require legal assistance.

In another example, a seller included his parking space in the bill of sale when he sold his suite although it was not designated as limited common property. A cursory reading of the SPA makes it plain that parking spaces are common property and, as such, can be assigned by the strata council for only one year at a time. When the new owner disputed the council's right to reassign the parking space, the council backed down. Clearly the council should have asserted its right, nay, its responsibility I to assign parking spaces for only one year at a time, to be extended at the discretion of council and, if necessary, to have obtained legal advice in doing so.

Legal costs to individual owners can be contained if several owners with the same concern, agree to share the cost and seek justice, rather than grumble among themselves or suffer in silence. Strata councils could function with greater confidence if they were less hesitant to seek legal advice when faced with uncertainty or conflicting claims. And individual owners might find the cost of legal assistance less onerous than the emotional cost of allowing an unpleasant situation to fester.

I'm not sure I answered the question regarding when to seek legal advice. But I hope I have encouraged strata owners and councils to seek legal assistance when there is no other solution to an issue that affects them.