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

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” ([https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc817/2013bcsc817.html ''Abdoh v The Owners, Strata Plan KAS 2003'', 2013 BCSC 817] at para 36).

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 [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96210_01 ''Human Rights Code'', RSBC 1996, c 210], or any other enactment or law.

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at the next annual general meeting or special general meeting (s 125(6)), and are effective immediately until it is repealed, replaced, or altered by the council (s 125(7)).

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 A Standard Bylaw can be repealed by the Legislature, as well.

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:

In [https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc2064/2018bcsc2064.html ''Semmler v The Owners, Strata Plan NES3039'', 2018 BCSC 2064], the court ruled that strata bylaws must be interpreted similarly to statutory interpretation. See [https://www.canlii.org/en/bc/bccrt/doc/2022/2022bccrt1352/2022bccrt1352.html ''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.

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.

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.

A residential strata lot landlord is entitled to give valid notice to a tenant under the [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/02078_01 ''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''.

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.

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 [https://www.canlii.org/en/bc/bcsc/doc/1999/1999canlii6382/1999canlii6382.html ''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.

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 (BCSC) determined there are some significant circumstances and serious contraventions sufficient to warrant actual costs incurred, including legal costs, to be recovered.

The strata council has its obligations and duty of care reflected in section 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''.

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 [https://www.canlii.org/en/bc/bcca/doc/2016/2016bcca449/2016bcca449.html ''Terry v The Owners, 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.”

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 [https://www.canlii.org/en/bc/bcsc/doc/1996/1996canlii2957/1996canlii2957.html ''The Owners, 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.

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)).