Enforceable (GOOD) Bylaws

By Patrick Williams, Clark Wilson LLP

A strata corporation must have bylaws. The bylaws may provide for the control, management, maintenance, use and enjoyment of strata lots and the common property. The bylaws of a strata corporation are the Schedule of Standard Bylaws to the Strata Property Act (the “Act”). A strata corporation can decide to add to or subtract from those Standard Bylaws. When making such a decision, a strata corporation should ensure that the changes result in enforceable bylaws.

What hoops must a strata corporation jump through to ensure its bylaws can be enforced? Initially, it is important to determine what bylaws currently exist. That should be done by checking the Land Title Office. A strata council or managing agent should not take anybody’s word as gospel as to what constitutes the bylaws. Our experience has included bylaws in which only the odd pages have been registered; bylaws that have been added without repealing existing bylaws inconsistent with the additions; bylaws that are just contradictory to each other; filed Form Is, with nothing attached, and so on. The Land Title Office does not review the documents filed to see if all of the changes or pages have been presented – the office merely confirms that a completed Form I (Amendment to Bylaws) is being filed and stamps the document with a registration number and date. As a result, care should be taken when submitting documents to ensure all amendments have been filed and the filed copy returned by the Land Title Office should also be reviewed and maintained as part of the strata corporation’s records. While many strata corporations prepare unfiled consolidations of the bylaws, it is the filed bylaw that is the official version of the bylaw.

In addition, we have encountered situations in which bylaws adopted at a meeting were never filed in the Land Title Office. The added or subtracted bylaws cannot take effect until they are registered and they must be registered in the Land Title Office within 60 days of being passed by a 3/4 majority vote of the owners.

A bylaw change cannot be contrary to the provisions of the Act, the regulations to the Act, the Human Rights Code or any other enactment or law. The Land Title Office will not review the bylaw changes to ensure that they are valid or enforceable. That means that if a registered bylaw change is unenforceable, it cannot be deleted from the Land Title Office without another 3/4 vote resolution of the owners. This is very important for councils and managing agents to understand before the bylaw change is registered. Many an owner has asked “How can that bylaw screening tenants possibly exist, if it is unenforceable?” And our answer is “Because it has been registered”. There are no mechanisms in place, short of going to Court or a 3/4 vote resolution repealing the bylaw, that can result in an unenforceable bylaw being removed from the Land Title Office. To compound difficulties, section 26 of the Act requires the council to enforce bylaws.

Council Members: Please review your bylaws on a regular basis to ensure that there are no contrary or inconsistent bylaws. When considering changing bylaws, make sure that you know what bylaws are registered in the Land Title Office. To the best of your ability, make sure that the bylaws being considered can withstand challenge. Consider retaining a strata lawyer to assist with the wording. In most instances, simple and general is best.

Managing Agents: When asked to register bylaws, please determine what is already registered and what needs to be properly repealed to avoid two or more inconsistent bylaws on the same point. If newly appointed, do not rely upon the previous managing agent to provide the current bylaws – obtain them from the Land Title Office. When preparing for an AGM or SGM in which bylaw changes will be addressed, ensure that any potentially controversial bylaw changes are presented independently by separate resolutions. This will avoid the defeat of the entire bylaw amendment package because of the rejection of the controversial provisions. And of course, the proposed wording must be included as 3/4 vote resolutions in the notice of the meeting that goes out with the agenda and proxy form. If the bylaw is duly amended at the general meeting, the minutes should reflect the amendment process and the filed bylaw should reflect the amended wording only.

In summary, an ounce of proofreading and proper preparation can avoid a ton of later grief.