Strata Corporation Bylaws and Rules (22:X): Difference between revisions

Revision as of 02:41, 20 August 2023

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 24, 2023.

A. Overview of Bylaws and Rules

Bylaws and rules govern the everyday life of a strata community, which often often comes as a surprise to new occupants of strata lots who are not used to this type of regulation. S 164 of the SPA allows an owner or tenant to have a court review what the owner or tenant considers to be a significantly unfair enforcement of a bylaw. The unfairness, the courts have decided, must be significant enough to warrant court intervention if they are going to take action. Strata councils must enforce bylaws to create a predictable living environment, but “enforcement vigour must be tempered with prudence and good faith” (Abdoh v The Owners, Strata Plan KAS 2003, 2013 BCSC 817 at para 36).

B. What Are Bylaws and Rules?

1. Bylaws and Governance

A strata corporation must have bylaws (SPA, s 119(1)) and 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 (119(2)).

2. Differences Between Bylaws and Rules

Bylaws govern strata lots, common property (including limited common property) and common assets. Rules only govern common property and common assets. Bylaws take precedence and govern if inconsistent with a rule (SPA, s 125(5)). Neither bylaws or rules are enforceable to the extent that they contravene the SPA, the SPR, the Human Rights Code, RSBC 1996, c 210, or any other enactment or law.

Strata corporations must have bylaws, but they do not need to have rules. Bylaws can be amended by a passage of a ¾ resolution of the owners (s 128(1)) and have no effect until they are filed in the Land Title Office. Rules are created by the strata council, subject to majority ratification of the owners (s 125(6)) and take effect immediately and continue once ratified.

3. Schedule of Standard Bylaws

Section 120(1) of the SPA provides that “the bylaws of the strata corporation are the Standard Bylaws except to the extent that different bylaws are filed in the Land Title Office”. Owner developers may file bylaws that different from the standard bylaws.

Standard bylaws comprise seven divisions and an aggregate of 30 bylaws. The divisions are:

Duties of Owners, Tenants, Occupants and Visitors;
Powers and Duties of Strata Corporation;
Council;
Enforcement of Bylaws and Rules;
Annual and Special General Meetings;
Voluntary Dispute Resolution;
Marketing Activities by Owner Developer.

4. Creation and Amendment of Bylaws

Bylaws are amended by a ¾ vote of the owners where the resolution requiring a vote must be passed at an annual general meeting or special general meeting, and the proposed wording amending the bylaw must be included in the notice of such meeting.

The strata corporation can also make rules, which are usually made by the presiding strata council under s 26 of the SPA. The rules must then be ratified by a majority vote of the owners at the next annual general meeting or special general meeting (s 125(6)), and are effective immediately until it is repealed, replaced, or altered by the council (s 125(7)).

5. Registration of Bylaws

In order to be enforceable, a bylaw amendment had to be filed in the Land Title Office within 60 days of being passed. Until filing, the amendment has no effect. There is nothing in the SPA that speaks to the registration of rules. However, they must be in a written document and capable of being photocopied.

6. Repeal of Bylaws

A repeal of a bylaw is a form of amendment of a bylaw (s 126). A Standard Bylaw can be revealed (s 120(1)) by the owner developer or the strata corporation. A Standard Bylaw can be repealed by the Legislature, as well.

7. Prohibited and Unenforceable Bylaws

Any bylaw that contravenes the SPA, the SPR, the Human Rights Code, or any other enactment or law is unenforceable (SPA, ss 121(1), 141). More restrictions include:

Bylaws cannot destroy or modify an easement under s 69 of the SPA;
Bylaws cannot prohibit or restrict the right of an owner to freely sell, lease, mortgage, or otherwise dispose of the strata lot or an interest in the strata lot;
Bylaws cannot prohibit or restrict short-term accommodations.

Case law has also provided that:

Bylaws that attempt to provide the strata corporation with authority over an area they do not own are unenforceable (East Barriere Resort Ltd. v The Owners, Strata Plan KAS 1819, 2016 BCSC 1609);
Bylaws that charge a “move-in fee” for a strata corporation where there is no use or wear of an elevator or other common property related to moving is unenforceable (The Owners, Strata Plan LMS 3883 v De Vuyst, 2011 BCSC 1252).

8. Bare Land Strata Bylaws

a) Exclusions from the Schedule of Standard Bylaws

Bare land strata developments involve different types of issues than regular strata plans, so many other bylaws might not apply to them. For example, Standard Bylaw 5 explicitly excludes bare land strata developments. Meanwhile, Standard Bylaw 8(d) refers to common walls in a sense of a conventional strata development, which do not exist in a bare land strata development.

Many bare land strata corporations will exclude bylaws that are not necessarily excluded by the SPR.

9. Interpretation of Bylaws and Rules

In Semmler v The Owners, Strata Plan NES3039, 2018 BCSC 2064, the court ruled that strata bylaws must be interpreted similarly to statutory interpretation. See The Owners, Strata Plan LMS 2333 v 1016711 B.C. Ltd., 2022 BCCRT 1352 for an application of this principle, where the tribunal decided it must interpret the plain and ordinary meaning of the words in an individual bylaw within the context of the entire bylaws.

C. Why Have Bylaws and Rules?

1. Compulsion

The strata corporation must have bylaws (SPA, s 119(1)).

2. Predictability

One of the advantages of bylaws is that owners can understand the standards with which they must comply, and that those rules are going to be enforced. Metropolitan Toronto Condominium Corp. No 776 v Gifford (1989), 6 RPR (2d) 217 (Ont. Dist. Ct.) addressed this by saying in para 224 that “people will only move into the building if they are prepared to live by the rules of the community which they are joining. If they are not, they are perfectly free to join another community whose rules and regulations may be more in keeping with their particular individual needs, wishes, or preferences”.

3. Governance

Bylaws and rules are intended to govern those who live in a strata community. The strata lot owners can amend the bylaws and rules to reflect any uniqueness of the community. The strata council enforces the bylaws, basically governing the owners.

Bylaws may sometimes be “cousins” to provisions in the SPA, meaning they relate to similar issues but have some differences in their wording. Case law has determined that in this case, both the bylaw and the SPA should be read together, if possible, and if not possible, the SPA cannot be changed and will prevail.

D. Bylaw Enforcement

1. Who Enforces Bylaws?

In July 2016, the CRT joined the courts as the bodies that can determine whether bylaws were contravened, enforceable, or even valid. CRT rulings are like court injunctions – they can decide whether a party must do something, not do something, and/or pay money.

a) Enforcement by Strata Manager or Strata Council

S 26 of the SPA provides that the council must exercise the powers and perform the duties of the strata corporation, including the enforcement of bylaws and rules.

Standard Bylaw 20(4) states that a strata council may not delegate its powers to determine whether a person has contravened a bylaw or rule, whether a person should be fined, the amount of the fine, or whether a person should be denied access to a recreational facility.

b) Enforcement by Strata Corporation as Landlord

A residential strata lot landlord is entitled to give valid notice to a tenant under the Residential Tenancy Act, SBC 2002, c 78 if the tenant has repeatedly contravened or continues to contravene a reasonable and significant bylaw or rule (SPA, s 137). Section 138 of the SPA provides that a repeated or continuing contravention of a reasonable and significant bylaw or rule by a tenant of a residential strata lot that seriously interferes with another person’s use and enjoyment of a strata lot, the common property, or the common assets is an event that allows the strata corporation to act as a landlord and give a tenant notice under s 47 of the Residential Tenancy Act.

c) Enforcement by Strata Council

The court in Abdoh v The Owners of Strata Plan KAS 2003, 2014 BCCA 270 found that a strata council has the discretion to choose not to enforce a bylaw, although this discretion is heavily limited by its standard of care from section 31 of the SPA.

This discretion to decide whether to enforce a bylaw is limited where the strata owners have a reasonable expectation that the bylaw that will be consistently enforced (The Owners, Strata Plan LMS 3259 v Sze Holding Inc., 2016 BCSC 32). The CRT has also began awarding owners damages where the strata council had failed to fairly apply or enforce its bylaws, like in LeTexier v The Owners, Strata Plan LMS 284, 2019 BCCRT 940.

d) Appoint Administrator

An administrator is an individual who essentially acts as the strata council. If the strata council is not discharging its obligations to enforce bylaws and rules, and the court is of the opinion that it is in the best interests of the strata corporation to appoint an administrator, the court may do so under sections 164 and 174.

e) Court Enforcement

If the strata corporation is not enforcing bylaws and rules, they could be sued (SPA, s 163). The court can also regulate the conduct of the strata corporation’s future affairs (s 164) and order a strata council to enforce bylaws and rules (s 166).

f) Referral to Arbitrator

A dispute may be referred to arbitration if it concerns interpretation or application of bylaws and rules, the use or enjoyment of a strata lot, or money owing with respect to fines for contravention of bylaws and rules (s 177(3)). An arbitrator can make whatever decision they consider just, having regard to bylaws and rules (s 185).

2. Enforced Against Whom?

Owners and tenants may be fined, should they contravene a bylaw or a rule. This includes a contravention by a guest of an owner or tenant, or an occupant if the strata lot is not rented by the owner to a tenant or a rented strata lot is not sublet by a tenant to a subtenant (s 130). The landlord, if they pay some or all of the fines or costs levied against their tenant, can recover their payments from the tenant.

Owners can also be fined for their tenant’s transgressions if the owner permits that transgression like in The Owners, Strata Plan BCS 3202 v Taheri, 2021 BCCRT 38 when the tenant used the rented suites for Airbnb short-term rental stays in violation of the strata bylaws.

3. Enforcement Measures

A strata corporation may enforce its bylaws by imposing fines (SPA, s 130), taking direct action to remedy a contravention of its bylaws or rules (SPA, s 133(1)), or deny access to a recreational facility (SPA, s 134). Fines are subject to maximum amounts (SPA, s 132), and the strata corporation may additionally require the person who is fined to pay the reasonable costs of remedying their contravention (SPA, s 133(2)). A strata council’s discretion in enforcing bylaws must be reasonable and fair.

a) Fines

Under s 130 of the SPA, fines can be levied against the strata lot owners or tenants, with respect to their personal conduct or conduct of their guests of occupants of their strata lots.

Standard Bylaw 23 states that the maximum a strata lot owner or tenant can be fined is $50 for each bylaw contravention and $10 for each rule contravention. However, a strata corporation can set out in its bylaws a different maximum amount it may fine an owner or tenant for a contravention for a bylaw or rule (s 132(1)).

Standard Bylaw 24 states that if an activity that constitutes a contravention of a bylaw or rule continues, without interruption, for longer than seven days, a fine may be imposed every seven days. Intermittent but consistent issues like noise complaints are not a continuing contravention. A strata corporation can set out in its bylaws the frequency at which fines may be imposed for a continuing contravention of a bylaw or rule (s 132(2)(b)).

Both the maximum fine and maximum frequency of imposition of fines must not exceed the maximums set out in the SPR or the bylaws (SPA, s 132(3)). The courts have also been reluctant to award the total fines levied if the aggregate total fines are substantial, like in Kok v Strata Plan LMS 463 (Owners), 1999 CanLII 6382 (BCSC), when the court said: “The imposition of fines does not serve to correct, remedy, or cure violations of the Bylaws but, rather, their purpose is to discourage violations of the Bylaws.

b) Doing Work to a Strata Lot, Common Property, or Common Assets

In remedying a contravention of a bylaw or rule, a strata corporation can do work to a strata lot, common property, or common assets, or remove objects from common property or common assets (SPA, s 133). It is recommended that before work is done to a strata lot or limited common property designated for the exclusive use of one owner, the strata corporation obtain an injunction. Injunctions can include terms that if an owner refuses to do work to a strata lot, then the strata corporation can do it and charge the cost of such work back to the owner. c) Injunctions S 133 states that the strata corporation may do what is reasonably necessary to remedy a contravention of its bylaws and rules. This includes an injunction. For example, injunctions have been granted against owners from commencing further appeal court actions against the strata corporation (Bea v Strata Plan LMS 2138, 2010 BCCA 463), and against owners to do things that have led to them constantly and continually contravening bylaws. d) Recovery of Legal Costs Generally, the requirement for an offending person fined under s 130 to pay reasonable costs of remedying the contravention does not include legal costs, as it includes, at most, tariff costs. However, the court in Strata Plan NW 1260 v Neronovich (31 October 2001), Vancouver L012803 (B.C.S.C.) determined there are some significant circumstances and serious contraventions sufficient to warrant actual costs incurred, including legal costs, to be recovered. e) Denial of Access to Recreational Facility Under section 134 of the SPA, the strata corporation may, for a reasonable length of time, deny a strata lot owner, tenant, occupant, or visitor access to a recreation facility that is common property or a common asset. Usage of this measure is limited to transgressions of bylaws or rules that relate to use of that facility.

f) Eviction Under sections 137 and 138 of the SPA, tenants who repeatedly or prolongedly contravenes a “reasonable and significant” bylaw or rule may be evicted, pursuant to section 47 of the Residential Tenancy Act, SBC 2002, c 78. There is no case law outlining the difference between a significant bylaw and an insignificant bylaw, and one would expect such a determination to be one based in each case on its facts. Either the landlord or the strata corporation may carry out the eviction. 4. Enforcement procedure Section 135(1) of the SPA prevents a strata corporation from immediately fining, ordering payment of the costs of remedying, or denying access to a recreational facility upon becoming aware of a possible contravention. The strata corporation must first satisfy the following: 1. Receive a complaint about the contravention; 2. Disclose the owner or tenant the particulars of the complaint in writing; 3. Give that person a reasonable opportunity to answer the complaint, including holding a hearing if requested by that person; 4. In the case of a contravention by a tenant: give notice of the complaint to their landlord. If the strata corporation does not strictly follow section 135, any resulting enforcement actions are invalid: see Terry v The Owners, Strata Plan NW 309, 2016 BCCA 449. a) Due Diligence The strata council has its obligations and duty of care reflected in s 31 of the SPA. Part of this is to collect as much data as it can when making a determination. If a strata council decides a bylaw or rule has been contravened, then enforcement procedures set out in sections 129 and 138 commence. Complainants alleging the strata council has wrongly decided there is no rule or bylaw contravention, the complainant has remedies as reflected in ss. 163 and 189 of the SPA. b) Particulars of Contravention S 135(1)(e) provides that an owner or tenant must be given the particulars of a complaint. There is no definition of “particulars”, but in Terry v Strata Plan NW 309, 2016 BCCA 449 at para 28, the court held that the owner or tenant must give particulars “sufficient to call to the attention of the owner of tenant the contravention at issue.” c) Hearings The CRT in Eastman v Strata Plan PGS 217, 2019 BCCRT 655 found that the “hearing” should be defined as “an opportunity to be heard in person at a council meeting.” If the complaint is against a strata council member, the member must not participate in the hearing decision (SPA, s 136). A strata council does not need to grant a hearing in every possible circumstance. In Hales v Strata Plan NW 2924, 2018 BCCRT 92 held that the strata council was justified in denying an owner a hearing due to the following facts: 1. The owner has not been fined, nor has he been penalized; 2. The owner has made previous requests and was granted a hearing; 3. The owner acted abusively at the August 2015 hearing and the council could expect the same conduct at the four requested hearings.

4. The owner wished to discuss alleged contraventions of the strata and reparations to the owner due to the alleged contravention; and 5. The reasons for the requests were with respect to the governance of the strata and would be more properly addressed at a meeting of the owners, or by majority direction of the owners. E. Miscellaneous Issues on Bylaws and Rules 1. Retroactivity Bylaws do not typically create exemptions based on retroactivity except for the main examples in section 123(1) and (2) which address retroactivity with respect to pet and age requirements. The issue of retroactivity is largely up to the courts, like in Strata Plan NW 243 v Hansen, 1996 CanLII 2957 (BC SC) when a bylaw prohibiting hot tubs was passed subsequent of the placement of a hot tub, and it would be unreasonable to force Hansen to remove the hot tub. F. Acceptable Bylaws Some provisions in the SPA permit strata corporations to influence their governance though bylaws not included in the Standard Bylaws. 1. Strata Council Section 28(2) of the SPA permits a strata corporation to allow a class of persons, other than those referred to in s 28(1), to be strata council members. This does not permit a strata corporation to create a bylaw reserving positions on a strata council for owners of a section or type of strata lot. Section 28(3) permits a strata corporation by bylaw to prohibit a person from standing for strata council or continuing as a strata council member with respect to a strata lot if the strata corporation is entitled to register a lien against that strata lot under s. 116(1). 2. Voting and Quorum Section 53(2) permits a strata corporation by bylaw to prohibit a vote being exercised for a strata lot, except on matters requiring a unanimous resolution, if the strata corporation is entitled to register a lien against that strata lot under s. 116(1). That strata lot’s vote must not be considered for the purposes of determining a quorum (s. 53(3)). Section 48(2) provides that a quorum for an AGM or SGM is eligible voters holding 1/3 of the strata corporation’s votes, present in person or by proxy unless there are fewer than four strata lots or four owners (in which case it is eligible voters holding 2/3 of the strata corporation’s votes present in person or by proxy). Section 48(3) provides that in the case of a lack of quorum within 1/2 hour from the time appointed for a general meeting, then the meeting is adjourned one week. If 1/2 hour passes without a quorum at the meeting a week later, then those present constitute a quorum. Holding two meetings is expensive, so many strata corporations pass a bylaw that calls for those present after 1/2 hour passes in the first meeting to constitute a quorum. 3. Financial Considerations Section 98(2) prohibits expenditures from the operating fund in excess of the lesser of $2,000 or five per cent of the annual operating fund budget, unless a bylaw states otherwise. A large strata corporation may wish to pass a bylaw increasing the limit, if the budget is substantial.

Section 107(1) permits the strata corporation by bylaw to establish a schedule of strata fees that sets out a rate of interest, not to exceed the rate set out in the SPR, to be paid if the owner is late paying strata fees and special levies. 4. Commencing Action in Small Claims Court Section 171(2) provides that before a strata corporation sues under s 171 for money owing including a fine, the suit must be authorized by a resolution passed by a ¾ vote at an annual general meeting or special general meeting. 5. Maximum Fines The Standard Bylaws provide that a strata corporation may fine a maximum of $50 for contravention of a bylaw and $10 for contravention of a rule. Section 132 of the SPA permits the strata corporation by bylaw to provide maximum fines in excess of the amounts noted in the Standard Bylaws, to a maximum set out in the SPR. Section 7.1(1)(a) of the SPR notes the maximum fines to be set out in bylaws are (with specified exceptions) $200 for contravention of a bylaw and $50 for contravention of a rule. Section 7.1(1)(c) provides that the maximum fine that a strata corporation may set out in bylaws for each contravention of a bylaw that prohibits or limits use of all or part of a residential strata lot for remuneration as vacation, travel, or temporary accommodation is $1,000. The maximum frequency that a bylaw can set out for the imposition of a fine for a continuing contravention of a bylaw or rule is every seven days (s. 7.1(2)(a)). However, in the case of contravention of a bylaw that prohibits or limits use of all or part of a residential strata lot for remuneration as vacation, travel, or temporary accommodation, the frequency may be daily under s. 7.1(2)(b). 6. Insurance Section 149(4)(b) provides that property insurance obligations must include major perils, as set out in the SPR, and any other perils specified in the bylaws of a strata corporation. “Major perils” as defined in s. 9.1(2) of the SPR does not include earthquakes. It is recommended that a strata corporation pass a bylaw requiring it to obtain insurance against earthquakes. 7. Limitation of Liability A strata corporation may pass a bylaw limiting the strata corporation’s liability to owners on property loss claims. This was confirmed by the CRT in Guemas v Strata Plan NW 2382, 2021 BCCRT 655. G. Rules 1. Mechanics As the strata council exercises the powers and performs the duties of the strata corporation (SPA, s 26), the strata council may make rules governing the use, safety, and condition of the common property and common assets that do not contravene the SPA, the SPR, the Human Rights Code, or any other enactment or law. A rule made by a strata council is valid only until the first general meeting (annual or special) after the rule is made. At that general meeting, the rule must be passed by a majority vote of the strata lot owners, or it will cease to have effect (s. 125(6)). Once the rule is so ratified, it is effective until it is repealed, replaced, or altered, without need for further ratification (s. 125(7)).