Strata FAQ’s

For what legal matters do Strata Owners qualify for?

Any Owner of a property in a Strata Complex which signed a Strata Legal Protection Plan retainer agreement with us, qualifies for a discount on his/her legal fees of 10%. Note that the reduction is to fees only; disbursements are payable in full.

What legal matters cannot be handled on behalf of Strata Owners?

Any matter involving the Strata Corporation or the Strata Council. We are contractually retained by the Strata and any representation of Owners in a Strata related matter will constitute a conflict of interest which, in terms of the BC Law Society Rules, is prohibited.
In these cases Owners are advised to take the matter up with the Strata Council directly or through the property manager. Alternatively the Owner should seek independent legal advice.

May the Strata Council enter into a long term agreement such as the SLPP?

Yes, barring anything to the contrary in the Bylaws. The Act does not prohibit long term agreements.

What is the principle on which a Strata Corporation operates?

Subject to the Strata Property Act, the Bylaws and Rules, Strata Corporations are democratic and run on democratic principles. These principles include:

– equal voting rights
– right to elect representatives
– majority rule
– the right to raise issues.

Who makes the decisions of the Strata Corporation?

All decisions of the Strata Corporation are made by the Strata Council in the manner prescribed by the Act and the Bylaws.

What is the role of the Strata Council?

Operating within any confines of the Act, Regulations and Bylaws, the Strata Council –

– Acts as the managing body for the Strata Corporation;
– Makes daily decisions to enable the Strata Corporation to operate efficiently

In terms of the Act, the Strata Council’s must “exercise the powers and perform the duties of the Strata Corporation, including the enforcement of bylaws and rules”.

What are the general duties of the Strata Council?

Unless there is a bylaw limiting its authority, the duties of a Strata Council or section executive include the following:

– managing, maintaining, and repairing common property generally in the case of a Strata Council (s. 3) and, in the case of a section executive, with respect to limited common property designated for the exclusive use of all the Strata Lots in the section;
– establishing and maintaining an operating fund and a contingency reserve fund;
– in the case of the Strata Council, obtaining and maintaining liability insurance, and property insurance on the common property, common assets, and original building, including fixtures; and in the case of a section, obtaining supplementary insurance (under s. 194(5) of the Act):
– convening annual general meetings (s. 40) and special general meetings in response to Owner demands (s. 43) (see §6.36 to §6.87);
– maintaining Strata Corporation and section records (s. 35) and making them available (s. 36);
– enforcing bylaws and rules of the Strata Corporation, in the case of the Strata Council, and in the case of a section executive, enforcing those that apply only to Strata Lots in the section

Where does the Strata (or Property) Manager fit in?

The Strata Council may appoint a Strata manager to perform some or most of the functions of the Strata Council. The extent thereof is agreed to in a Management Agreement which contains the terms and conditions of the appointment. Notwithstanding this delegated, the Strata Council is still responsible for ensuring that its obligations under the Act and Bylaws are fulfilled.

Can the powers of the Strata Council be limited?

Keeping in mind that the Strata Corporation can never restrict or limit the Strata Council if the restriction or limitation is contrary to the Act, Regulations or Bylaws or if it interferes with the Strata Council’s ability to make a decision based on whether an Owner has breached a By-law or Rule; an Owner should be fined; or an Owner should be restricted from using a common property, the Owners can pass a resolution by majority vote at general meeting or special meeting to direct or restrict the actions of the Strata Council.

Who can be elected to serve on the Strata Council?

The following persons are eligible to serve on Strata Council: -all Owners, including existing or past Strata Council members;

– representatives of corporate Owners;
– tenants who have been assigned the Owner’s right to vote, by one of the following methods:
– different classes of persons, if a bylaw is created to permit certain classes of persons to sit on Strata Council, such as spouses or children of Owners.
– either being a family member, as defined in the Regulations;
– entering into a lease of three years or more; or
– the landlord delivering a written notice to the Strata Corporation which discloses the terms of the voting assignment;

Note: In terms of s 28(3) no Owner is electable or may continue to serve as a Council member if there is money owning to the Strata Corporation that is due and payable. The test is “If the Strata Lot is lienable” If there are multiple Owners of one Strata Lot only one Owner can sit on the Strata Council (unless all Owners are on the Strata Council, in which case each Strata Lot only has one vote. Standard Strata Corporation Bylaws provide that if there are fewer than four (4) Strata Lots or Owners, all Owners must sit on the Strata Council.

How is a Strata Council elected?

The Strata Council is elected every year at the annual general meeting. The number of Strata Council members set out in the Standard Bylaws is between three and seven members. However, if there are fewer than four lots or four Owners, then all Owners are required to sit on the Strata Council.

What is the term for which the Strata Council is elected?

According to the Standard Bylaws a current Strata Council term ends and a new Strata Council term begins at the end of every annual general meeting in which the new Strata Council is elected. This term is usually one (1) year.

How can a Strata Council member be removed during his/her term?

According to the Standard Bylaws,

– A Strata Council member can be removed, with or without cause, by a majority vote of the Owners at a general meeting. The Owners should at this meeting elect a replacement Council Member;
– If a Council Member is unwilling or unable to perform his or her duties for two months or longer, he or she can be replaced by a new Strata Council member to be appointed by the existing members of Strata Council. The new Strata Council member will hold the seat for the remainder of the replaced member’s term.

May a Council Member receive payment?

Strata Council members may be remunerated under one of the following conditions:

– If it is permitted by the Bylaws; or
– If a resolution to that effect was passed by a ¾ vote of the Owners at a general or special meeting; or
– If the payment was duly approved with the annual budget.

Who can call a Strata Council Meeting?

Any Strata Council member can call a Strata Council Meeting:

– by giving the other members at least one week’s notice, specifying the reason for the meeting; or
– by giving less than one week’s notice if the Strata Council members agree; or
– the meeting is required to deal with an emergency situation, and Strata Council members either consent in advance of the meeting or are unavailable to provide consent after reasonable attempts to contact them.

An Owner can by written application stating the purpose of the hearing, requisition a Strata Council meeting to have a hearing. A meeting requisitioned for a hearing must be held within a month.

What rules apply to Strata Council meetings?

At the first meeting of the new Strata Council, members must elect from amongst themselves the following:

– a president;
– a vice-president;
– a treasurer; and
– a secretary.

A Council Member can hold more than one office, as long as it is not president and vice-president; At the beginning of a Strata Council Meeting, members should determine if the required quorum under the Bylaws is met; Minutes of Strata Council Meetings must be kept and the Strata Council must inform Owners of the decisions made at each Strata Council Meetings within two weeks of the meeting; Strata Council Members can attend a Strata Council meeting by electronic means, as long as all members (or participants) can communicate with one another; Owners may attend a Strata Council Meeting as an observer, but they may not be present during the portions of meeting related to By-law enforcement proceedings; rental restriction By-law exemption hearings and matters where a person’s right to privacy may be infringed.

How are decisions of the Strata Council made?

If a quorum of Strata Council Members is in attendance, decisions at the Strata Council Meeting are made by a majority vote of the members present at the meeting.

How do I give effect to my dissatisfaction with the Strata Council?

Take up the matter with the Strata Council directly, alternatively through the Property Manager. It is possible to apply to the Supreme Court for an injunction to make the Strata Council abide by their duties imposed on them by the Strata Property Act, including bylaw enforcement under s. 26 (Strachan v. Owners Strata Corp., 1992 CanLII 2233 (BC SC)). However, this process is expensive and time consuming. The Court is only likely to impose an injunction if the Council’s actions were not reasonable or realistic. The Courts have suggested that the best remedy for dissatisfaction with Strata Owners is at the ballot box (Venefer v. Strata Plan LMS 1564, 2005 BCSC 1866l; Nomani v. Strata Plan LMS 3837, 2007 BCSC 276).

When will a council member have a conflict of interest?

A council member will have a conflict of interest when he/she has a direct or indirect interest in a contract or transaction with the Strata Corporation, or in a matter that is or is to be the subject of consideration by the council, if that interest could result in the creation of a duty or interest that materially conflicts with that council member’s duty or interest as a council member.

How must conflict of interest be managed by the council?

The council member must disclose fully and promptly to the council the nature and extent of the interest. If this is not done it will be a breach of the council member’s fiduciary duty and he may incur liability. The Council Member must the abstain from voting on the contract, transaction or matter and leave the council meeting while the matter is discussed, unless asked by council to be present to provide information.

Can a Strata Council make unapproved expenditures?

Unapproved expenditures are regulated by s 98 of the Act. Unapproved expenditures may be made from the operating or contingency reserve fund if the amount is less than the amount set in the Bylaws or, if the Bylaws are silent as to the amount, less than $2,000 or 5% of the total contribution to the operating fund for the current year, whichever is less, if there are reasonable grounds to believe that an immediate expenditure is necessary to ensure safety or prevent significant loss or damage, whether physical or otherwise. The Strata Corporation must inform Owners as soon as feasible about any expenditure.

Can a Strata Council re-allocate operating funds?

With re-allocation (taking into account s 97(b) and 98(2)), the responsibility to make the determination in the first instance rests with the Strata Council. In all its actions the Strata Council is obligated to act in the interest of the Strata Corporation (s 3) and the greatest good for the greater number of Strata Owners (Gentis v. Strata Plan VR 268 2003 BCSC 120). If a re-allocation of funds meets this criteria, the Strata Council will be obliged to act. (See unapproved expenditures for further conditions)

Can a Strata Council re-allocate the order in which Strata fees are applied?

Section 119(2) provides that 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. If a bylaw exists that states the priority in which payments by an Owner to the Strata Corporation shall be allocated, Strata fees may be applied in the order that the bylaw prescribes. The issue of the allocation of payments has not been considered by a British Columbia court, however Ontario has permitted a condominium corporation to make payments towards outstanding arrears in whatever manner is determined by the condominium corporation (Amoah v. York Condominium Corp. No. 42, [2005] O.J. No. 5266 (QL) (S.C.J.)). There was no bylaw in Amoah that provided for the allocation of payments. Simply, the court held that the condominium corporation could allocate payments in whatever manner it chose.

Which matters require approval by majority vote of the Owners?

– adopting an operating budget (s. 103).

Which matters require approval by 3/4 vote of the Owners?

– amending bylaws (s. 126);
– authorizing extraordinary expenditures (ss. 96 and 97);
– raising funds by special levy (s. 108);
– authorizing a significant change in use or appearance of common property and granting or revoking limited common property designations (ss. 71, 74, and 75);
– acquisition and disposal of property (ss. 78 to 82);
– authorizing litigation (ss. 171 and 172);
– creating or cancelling sections (s. 193);
– amalgamating Strata Corporations (s. 269) (not applicable to a section)

Which matters require approval by unanimous vote of the Owners?

– allocating expenditures by mechanisms other than unit entitlement (s. 100)
– amending the Strata plan (ss. 257, 259, 262, 263, 265, and 266)
– cancelling the Strata plan (ss. 272, 276, and 284)

Can an Owner refuse entry to a contractor repairing common property?

No. If entry is required to fix the problem [access to the roof] the Owner cannot refuse access. The Strata Corporation has an obligation to repair common property (roof, gutters, etc.). [Royal Bank of Canada v Holden (1996), 7 RPR (3d) 80 BCSC]. Sections 69 & 77 of the Strata Property Act supplies an enforceable right of entry into any unit by the Strata Corporation to repair these types of structural problems under. The Council could obtain a court order against the tenant for entry and repair [Strata Plan LMS 3259 v Sze Hang Holding Inc, 2009 BCSC 473]

Is the Strata Corporation obligated to repair even after an Owner has refused entry?

Yes. Despite an Owner’s obstructionist behaviour, the Strata Corporation is still under obligation to repair the damage to common property despite any Bylaw, resolution, or written warning to the Owner. The Strata Corporation will however not be liable for any damage to the Owner’s property due to the defect of the common property [leak in the roof] from the date that the excess was denied until the problem is fixed. Should the Strata Corporation repair the Owners damages, the cost thereof may be recouped from the Owner.

What are the tenant’s rights under the Act?

All tenants have the following rights under the Act:

• to obtain a copy of the current bylaws and rules and a “Notice of Tenant’s Responsibilities” (Form K) from the landlord;
• to inspect and obtain copies of the bylaws and rules from the Strata Corporation at no charge;
• to request that the Strata Council grant them short term exclusive use of common property;
• to the same access to any dispute resolution methods as an Owner;

What are the tenant’s rights under the bylaws?

All tenants have the following rights under the Standard Bylaws:

• to attend annual and special general meetings, unless a majority vote is passed to exclude them from the meeting; and
• to participate in discussions at annual and special general meetings if permitted by the chair.

What are long term tenants?

Long term tenants are residential tenants with leases of three years or longer.

What are the rights of residential long term tenants?

With exceptions, residential long term tenants have the same rights and obligations as landlords under the Act, Regulations, bylaws and rules for the duration of the lease.

When can the residential long term tenant exercise the rights of the landlord?

Before exercising any rights of the landlord, long term tenants must provide the Strata Corporation with written notice of the time period of the lease and their name. This is most effectively achieved by supplying a copy of the lease to the Strata Council.

What are the exceptions to the right of the long term residential tenant to exercise the landlord’s rights?

Long term tenants may not take would affect the Owner’s interest in the Strata Lot, common property or land that is a common asset, i.e. acquire or dispose of land; cancel or amend the Strata plan, etc.

What are examples of specific obligations of long term residential tenants?

• to pay strata fees;
• to pay special levies that are due within the term of the lease; and
• to maintain and repair parts of the Strata Lot and limited common property that the bylaws make the Owner responsible to maintain and repair.

What are examples of the specific rights of long term residential tenants?

• to access and obtain Strata Corporation records;
• to attend and vote at special or annual general meetings;
• to receive Strata Corporation notices; and
• to be eligible for election to the Strata Council.

May landlords assign their rights and obligations to tenants?

Yes, provided that they give written notice of the assignment to the Strata Corporation stating what rights and obligations are assigned to the tenant; the name of the tenant; and the time period that the assignment is effective. (See “Exceptions” here below)

What is the exception to the landlord’s right to assign its rights and obligations to tenant?

The Owner’s (landlord) responsibility to pay the cost of remedying contraventions or fines on behalf of the tenant cannot be assigned to the tenant.

What information is protected by the Personal Information Protection Act (PIPA)?

The Personal Information Protection Act (PIPA) protects personal information about an “identifiable individual” and includes things such as name, age, weight, height, home address, home phone number, race, ethnic origin, sexual orientation, medical information, marital status, religion, finances, education and employment, as well as factual accounts or opinions about that individual. Personal information does not include “contact information”, which is information that enables the individual to be contacted at his place of business. Contact information includes a person’s name, business address, business telephone number, business fax number and business email address. PIPA applies to the personal information in the control of organizations such as Strata Corporations, but does not apply to contact information.

What information must the Strata Corporation protect?

The Strata Corporation must protect personal information.

Is a certificate of payment required for a sale as a result of a foreclosure?

A change of Ownership arising from a vesting order obtained in a foreclosure proceeding does not trigger the requirement under the Act (s256) to file a Certificate of Payment. Peoples Trust Co. v. Meadowlark Estates Ltd., 2003 BCSC 1321 (Master), affirmed 2005 BCSC 51. Therefore, if the sale of the Strata Lot is the result of a foreclosure, the Land Title Office will not insist on a Form F when the transfer is registered. As the Strata Corporation will not be requested to supply a Certificate of Payment, the Strata Lot may well be transferred without the Strata Corporation receiving its outstanding Strata fees. If a Lien has not been filed, the Strata Lot may be transferred by vesting order without giving the Strata Corporation the opportunity to make a claim for any money owing to it, whether it be Strata fees, special levies, or fines. As a result, the Strata Corporation needs to ensure that a Lien is filed at the earliest opportunity so that the Strata Corporation is named as a respondent in any foreclosure proceeding and has the opportunity to make a claim for any Strata fees owing to it.

The Strata Corporation’s priority in foreclosure proceedings

Usually the rights of the Strata Corporation to payment of its outstanding Strata fees ranks first, even before a mortgage. This right can easily be enforced by the Strata Corporation during the transfer process of the distraught Lot. S256 of the Act requires that a Certificate of Payment [Form F of the regulation] must be filed in the Land Title Office. The Strata Corporation can refuse to issue the Certificate of Payment until all of the outstanding arrears of paid or satisfactory arrangements for payments have been made. During a foreclosure proceeding, as a vesting order obtained in a foreclosure proceeding does not trigger the requirement under the Act (s256) to file a Certificate of Payment (Peoples Trust Co. v. Meadowlark Estates Ltd., 2003 BCSC 1321 (Master) , affirmed 2005 BCSC 51) There is no way to enforce the Strata Corporation’s priority to receive payment of outstanding Strata fees. To enforce its claim the Strata Corporation has to become a part of the foreclosure proceedings. The easiest way to do this is to ensure that a Lien is registered at the earliest opportunity when Strata fees are outstanding.

How does the Strata Corporation ensure its priority in foreclosure proceedings?

The Strata Corporation should be careful when served with foreclosure proceedings. The mortgage holder may file pleadings that fail to acknowledge the priority of the Strata Corporation’s Certificate of Lien. The Strata Corporation will want to ensure that any and all orders made in the foreclosure proceedings deal appropriately with the Strata Corporation’s priority. If the petition fails to acknowledge priority of the Strata Corporation’s Certificate of Lien, the Strata Corporation should prepare and file a response that opposes that portion of the petition or consents to the petition on the condition that the Strata Corporation’s priority status is maintained. A prudent Strata Corporation will file a response so that it receives notice of each application made in the foreclosure proceeding, maintains its priority status, and is not prejudiced by the orders being made.

What can be done to expedite matters?

Once the foreclosure proceedings are commenced, the Strata Corporation should consider requesting the petitioner to pay amounts owing under the Certificate of Lien. Sometimes the petitioner will pay the amount owing to have the Certificate of Lien removed early in the proceedings.

Costs that may be included in a Certificate of Payment

– Amounts demanded under a Certificate of Lien;
– fines and the cost of remedying a contravention of a bylaw or rule; and
– fines and costs for which the Owner is responsible under s131 (s115(4))

What happens if there is a dispute?

If there is a dispute relating to fines or costs of remedying a bylaw contravention, the Owner can pay the money in trust to the Strata Corporation, where after the Strata Corporation must issue the Certificate of Payment.

Can a Strata Corporation refused to issue a Certificate of Payment?

Yes

Can an Owner refuse to pay disputed fines or costs when selling his Strata Lot?

If no action has been started and the Strata Corporation refuses to accept alternative proposals, an Owner disputing the fines or costs of remedying a bylaw contravention has no option other than payment. However, if the amounts being claimed are high, and there is an arguable case in favour of the Owner, and there is danger that the sale will be lost, a prudent Strata Corporation will allow a payment to be paid in trust and grant a Certificate of Payment as an arrangement satisfactory to the Strata Corporation under s115(1)(b)(ii). Either way, the Owner will have to pay.

How can a special levy be divided between Strata Lot Owners?

S 108(2) states that the proportionate contribution of an Owner to a special levy can be calculated in 3 ways: 1. By the default method – Proportionate to the Strata Lot’s entitlement in terms of s 99, which will required a ¾ vote; or 2. By a different method passed at an Annual or Special General Meeting by unanimous vote in terms of s 100. A ¾ vote is required to pass a special resolution on the agreed s 100 method; or 3. By any other fair method to apportion the special levy in terms of s 108(2)(b), which requires a unanimous vote.

What must a resolution for a special levy specify?

Section 108(3) states that a resolution to approve a special levy must set out the following: (a) the purpose of the levy; (b) the total amount of the levy; (c) the method used to determine each Strata Lot’s share of the levy; (d) the amount of each Strata Lot’s share of the levy; (e) the date by which the levy is to be paid or, if the levy is payable in installments, the dates by which the installments are to be paid.

I want to rent my unit to someone else, what must I do?

First ensure that your Strata is not subject to rental restrictions. These restrictions must be contained in the Bylaws. If there are restrictions you will have to follow the prescribed procedure to obtain permission to rent the unit to a tenant.

What must the agreement look like

Ask a lawyer to help you with a suitable agreement. No two landlords have the same requirements. The Residential Tenancy Branch of the B.C. Government has a Residential Tenancy Agreement that may be of assistance. http://www.rto.gov.bc.ca/documents/RTB-1.pdf

What happens when the tenant occupies a unit in contravention of the Rental Restriction Bylaws?

Where an Owner rents a Strata Lot in contravention of a bylaw that prohibits or limits rentals, it is the Owner and not the tenant that is in contravention of the bylaw. The tenant may (not must) vacate the Strata Lot within 90 days of learning that the rental is a breach of the bylaws and end the tenancy agreement without penalty (s. 145(1)). If the tenant ends the tenancy agreement in accordance with s. 145(1), the landlord must pay reasonable moving costs of the tenant to a maximum of one month’s rent (s. 145(2)).

When can a landlord give notice to a tenant to vacate the property?

– Employment with landlord has ended
– The tenant has not paid rent or utilities
– The landlord wants the unit or property for another use
– The landlord has cause, as described in the Act, regulation or tenancy agreement
– The tenant does not qualify for subsidized housing
– The tenant has breached an agreement with the landlord

My tenant does not want to move out, what now?

If notice to vacate was given correctly and the notice period and lease period have elapsed, the tenant has no choice but to move out. If he/she does not, the landlord has to take action otherwise it is assumed that the agreement continues on a month to month basis. The landlord may obtain an Order for Possession from the director in terms of s 55(2)(b) of the Residential Tenancy Act. All the information you may require in this regard is at http://www.rto.gov.bc.ca/content/formsFees/default.aspx#end. The form to start this proses is located at – http://www.rto.gov.bc.ca/documents/RTB-12-L.pdf

What can the tenant do about the Order for Possession?

Within two days of the order being served, a tenant may submit an Application for review consideration of a decision or order. If the second day falls on a day when the Residential Tenancy Branch (RTB) is closed, the tenant has until the next business day to submit the application for Review. (s 80)

When can the landlord enforce the Order of Possession?

Before having the order of possession enforced, the landlord must wait until the two-day period has passed and contact the RTB to see if the tenant has filed for a review within the deadline. The landlord can enforce the Order on the third day.

What are the landlord’s obligations after the Order of Possession is given.

The landlord must serve a copy of the Order on the tenant as set out in the Residential Tenancy Act, by: – Giving a copy directly to the tenant (presumed served on the same date) – Leaving a copy with an adult who apparently lives with the tenant (presumed served on the day that is left) Attaching a copy to the door or other noticeable place where the tenant lives. (presumed served on the day that is was attached) Sending a copy by registered mail. (presumed served on the 5th day after the mailing date) – Any other way ordered by the Residential Tenancy Board.

Who enforces the Order of Possession?

The landlord must enforce the Order of Possession through the Supreme Court of British Columbia by applying for a Writ of Possession. As the Tenant has 2 days to request a review of the Order of Possession. The Residential Tenancy Branch does not enforce Orders of Possession.

What is the process for enforcing the Order of Possession?

The Order of Possession is filed with the Supreme Court of British Columbia where after a Writ of Possession is issued. On the strength of the Writ of Possession, the court bailiff can legally remove the tenant and the tenant’s belongings from the property. Only the court bailiff can legally do this.

Steps to enforce the order:

1. Before filing an application to the court, select a court bailiff from the list of court bailiffs that is available from the civil court registry or at 2. Contact the court bailiff firm to discuss the amount of the deposit, estimated costs associated with execution of the Writ of Possession, and the timelines for them to action a Writ of Possession. 3. Get the following forms from the Supreme Court Residential Tenancy Act – Writ of Possession Package ( http://courts.gov.bc.ca/supreme_court/self-represented_litigants/info_packages.aspx). Fill out and file these documents at a Supreme Court civil registry: Fill out and file these documents at a Supreme Court civil registry: o Requisition – Form 17 o Affidavit of Service o Writ of Possession – Form 52 o Original or Certified Copy of the Order of Possession (the original you receive from the Residential Tenancy Branch is a certified copy) The Supreme Court of British Columbia has fees associated with issuing a Writ of Possession and swearing an affidavit at the court registry. 4. Give the filing clerk at the court registry the name of the court bailiff firm you wish to use. Once issued, the court registry will forward the original Writ of Possession to the court bailiff company you hired. You are responsible for ensuring that the deposit, a copy of the Writ of Possession, and any other required information is provided to the court bailiff.

How do I recover my costs?

The landlord has two options for recovering the costs associated with enforcing a Writ of Possession. The landlord may apply to the Residential Tenancy Branch for dispute resolution to seek financial compensation from the tenant to cover costs related to removing the tenant. These costs include court bailiff fees and may also include expenses of the incoming tenant, including alternate accommodation, meals, additional moving costs or truck rental fees. Alternatively, see the Small Claims Court process for recovering costs of removing the tenant, described below. The Writ of Possession has a provision that gives the court bailiff the authority to seize and sell goods of the tenant to recover the landlord’s costs which may include court bailiff fees, locksmith fees and moving fees. The court bailiff will seize assets if there are items of value which exceed those allowed in the regulations to the Court Order Enforcement Act. However, if the tenant’s property will not pay for the costs, the landlord may have the court bailiff serve a Small Claims notice of claim on the tenant for these costs. To pursue this option, see http://www.ag.gov.bc.ca/courts/small_claims/index.htm

Illegal eviction

It is against the law for a landlord to: – physically evict a tenant, or – change the locks without a Residential Tenancy Branch order to do so, or – seize a tenant’s personal property without a court order, or – use the services of a bailiff firm that does not have a contract with the Ministry of Attorney General to evict a tenant to perform these services. Only officers appointed as court bailiffs may legally evict a tenant pursuant to a Writ of Possession. A landlord who illegally evicts a tenant may be fined up to $5,000 and may be required to reimburse costs incurred by the tenant as a result.

Can a strata corporation evict a tenant who is contravening bylaws or rules?

A strata corporation can take steps to evict a tenant who repeatedly contravenes a reasonable and significant bylaw or rule to the point of seriously interfering with another person’s use and enjoyment of a strata lot, pursuant to s 138(1) of the Act. Once the strata corporation has established a body of evidence for the repeated and continuing contravention which seriously interferes with another person’s use and enjoyment of a strata lot, including issuing fines to the tenant under the requirements of the Act, then the strata corporation can take further steps to remove the tenants in place of the landlord.

What is a Rental Disclosure Statement?

A Rental Disclosure Statement is a form filed by the owner developer of a strata. It sets out the rental policy for each unit for some fixed period of time (e.g. 10 years) for as long as the units remain owned by their original owner (after the owner-developer). If the Rental Disclosure Statement has been appropriately filed, and it indicates that a particular unit may be rented, then any rental restriction bylaws passed by the strata do NOT apply to that particular unit until the earlier of either (a) the date indicated on the Rental Disclosure Statement or (b) the date the first owner (after the owner developer) sells the property. The Rental Disclosure Statement does not apply to you if you are not the first owner of the unit (after the owner developer). Units which are rented pursuant to the Rental Disclosure Statement do not figure in to any calculation of rentals pursuant to a bylaw. Therefore, if 8 rentals are permitted in your unit under a rental restriction bylaw, the Court has interpreted that as meaning that 8 additional units may be rented besides those permitted by the Rental Disclosure Statement.

What is a Hardship Application?

According to section 144(1) of the Strata Property Act, an Owner may apply to the Strata Corporation for an exemption from a rental restriction bylaw on the basis that it causes hardship to the Owner. This exemption may be granted for a limited time.

What is the basis upon which a Hardship Application will be decided?

Section 144(6) of the Strata Property Act provides that the Strata Corporation must not unreasonably refuse to grant an exemption. Some factors that the Court has found relevant for consideration by Strata Corporation include (Als v The Owners, Strata Corporation NW 1067, 2002 BCSC 134): – inability to re-sell the unit/decrease in sale value from purchase price; – inability to obtain insurance because a unit is not occupied; – potential prohibitive cost of property management; – substantial decrease in sale value where a new ban on rentals is put in place; – value of the unit making up all or substantially all of an Owner’s assets.

What is the process for a Hardship Application?

An Owner must apply in writing to the Strata Corporation stating (i) the reason the Owner thinks an exemption should be made, and (ii) whether the Owner wishes a hearing.

What must my hardship application consist of?

The application can take the form of a letter, addressed to the Strata Council, setting out the circumstances of the hardship clearly. Although not required by the Act, attach statements, figures, calculations, etc. as proof of hardship. (Note that Council can only make an informed decision with all the facts before them. To make a decision on a statement of hardship alone could be construed as acting negligently and may set a detrimental precedent for future decisions).

How long does the Strata Corporation have to make a decision regarding a Hardship Application?

If the Owner does not request a hearing, the Strata Corporation has 2 weeks after the application is given to the Strata Corporation. If the Owner does request a hearing, then the Strata Corporation must hold a hearing where the Owner or his/her agent can speak to the application within 4 weeks after the date of the application. A decision must then be provided to the Owner within 1 week after the hearing is held.

How do I appeal a Hardship Application if it is denied?

The Strata Property Act does not require a Strata Corporation to hear an appeal of their decision regarding a hardship application. An Owner may apply to the Supreme Court on the basis that the Strata Corporation’s decision was unreasonable. However, a court application is an expensive and technical process, and an Owner wishing to bring an application should consult a lawyer.

What is a lien?

A lien is a statutory charge that is registered against the title of a property to secure the payment of certain debts due by the Owner. This can be for work done on the property, Strata fees, taxes, etc. A lien is intended to give those bestowing work services and material an interest in the land and improvement until they are paid.

What is the effect of a lien?

When a lien is registered against the title of a property the lien registrant has a security interest in the property. The Owner cannot deal with the property in any manner until the lien has been discharged.

Who can register a lien on my strata unit?

In terms of the Builders Lien Act, contractors, subcontractors, workers as well as other providers like architects, material suppliers, etc. In terms of the Strata Property Act, the Strata Corporation for outstanding Strata fees, fines, interest and legal fees.

Does a lien affect my ability to deal with my property?

Yes, you cannot sell, mortgage or act in any other manner with the property until the lien has been discharged.

Can a lien be placed on my unit for work done to the common property?

Yes, the contractor can lien each unit in the Strata complex for work done on the common property.

Does a lien affect my credit rating?

Yes, while the lien is active your credit rating will be adversely affected. Even when the lien is removed, it remains attached to the history of the title. Further, it will continue to be reflected as an adverse entry or notation on the credit bureau for a maximum of 7 years. You may apply to the credit bureau to have the charge removed. Unfortunately, if a lien is registered against the unit even if you have no liability, i.e. you paid your special levy for work done on common property, there is a dispute and a lien is registered (even if the lien is removed by payment to court or as security), your credit rating may well continue to be affected. If this happens, contact the credit bureau directly to correct the problem.

How is a lien removed?

With a builders lien, when the lien amount is paid, the lien must be removed by the person who registered it within 14 days. Alternatively, if there is a dispute, the lien amount may be paid into Court or in trust to the lawyer, where after the lien will be removed. The only manner to discharge a lien registered in terms of the Strata Property Act is to pay the lien amount, or by Court order.

When can the Strata Corporation lien an Owner’s Strata Lot?

When the owner owes the strata corporation amounts for, (a) strata fees; (b) a special levy; (c) a reimbursement of the cost of work referred to in section 85; (d) the strata lot’s share of a judgment against the strata corporation [s. 116(1)] or interest thereon.

Can the strata corporation lien an owner’s strata lot for fines?

No, fines are not included in s. 116(1).

Can the strata corporation lien an owner’s strata lot if the outstanding amount is in dispute?

Yes, but only if the owner did not pay the disputed amount into court or to the strata corporation in trust (s. 116(3)).

What is the priority of the strata corporation’s lien against the strata lot?

The strata corporation’s lien ranks in priority to every other lien or registered charge except (a) to the extent that the strata corporation’s lien is for a strata lot’s share of a judgment against the strata corporation, (b) if the other lien or charge is in favour of the Crown and is not a mortgage of land, or (c) if the other lien or charge is made under the Builders Lien Act.

What Services may a Strata manager deliver?

Strata Managers may deliver any service contractually agreed to between the parties except if those services
– are prohibited by law, i.e. practice of law; or
– falls outside of their experience.

What Services may a Strata Manager not deliver?

A strata manager may not deliver any service that
– is considered “practice of law” (or legal service); or
– falls outside of their experience.

What specific services may a Strata manager not deliver?

Strata managers may not deliver the following services as, for the reasons stated, they constitute legal services –
– Prepare and send a demand letter for arrears strata fees;
A Letter of Demand should be prepared in such a manner that it allows the Strata Council to proceed with the collection procedure in terms of the Strata Property Act immediately if the Owner does not comply with the request to settle the arrears Strata Fees. To achieve this a Notice in terms of Section 112(2) of the Strata Property Act must be included in the Letter of Demand. Giving notice in terms of the Act constitutes a legal service as defined by section 1 (b)(iv) of the Act Legal Profession Act, which a strata manager may not provide in terms of section 15 of the Legal Profession Act.
– Notice to the Owner in terms of section 112(1) of the Act and Notice to the Mortgagee in terms of section 113 of the Act;
– Giving notice in terms of the Act constitutes a legal service as defined by section 1 (b)(iv) of the Act Legal Profession Act, which a strata manager may not provide in terms of section 15 of the Legal Profession Act.
– The registration of a Strata Lien against the property of the defaulting owner; A Strata Lien is “an instrument relating to real or personal estate that is intended, permitted or required to be registered, recorded or filed in a registry or other public office.” as defined by section 1 of the Legal Profession Act as as part of the “practice of law”. As section 15 of the Legal Profession Act limits the practice of law to lawyers and parties acting on their own behalf, strata manager are excluded from preparing any documentation related to the Strata Lien or the registration thereof.
– The completion of form H – acknowledgment of payment;
– The removal of the lien from the property;
– The preparation of a resolutions to be tabled at the AGM;
– The preparation and updating bylaws and rules;
– The registration of bylaws and rules.

Bylaws and Rules are “an instrument relating to real or personal estate that is intended, permitted or required to be registered, recorded or filed in a registry or other public office.” as defined by section 1 of the Legal Profession Act as as part of the “practice of law”. As section 15 of the Legal Profession Act limits the practice of law to lawyers and parties acting on their own behalf, strata manager are excluded from preparing any documentation related to the Strata Lien or the registration thereof.

All of the above in some form or the other constitute legal services and any person who is not a lawyer undertaking such work on behalf of the Strata Corporation is involved in the unauthorized practice of law.

Why can a Strata manager not deliver certain Services?

Answer pending.

What is the Practice of Law?

Section 15(1) of the Legal Profession Act states: “no person, other than a practicing lawyer, is permitted to engage in the practice of role, except (a) a person who is an individual party to the proceeding acting without counsel solely on he’s or her own behalf”

It is clear that this section authorizes only a lawyer to provide legal services on behalf of another. Whether a person is delivering legal services to another, and thus involved in the practice of law on behalf of the other person, for free is irrelevant. Except for the persons described in the remainder of this section 15 there are two types of persons who may be involved in the practice of law: a lawyer and a person acting on his or her own behalf. While section 15 provides that no person other than a practicing lawyer is permitted to engage in the practice of law and section 1 of the Legal Profession Act proscribes what activities are included in the practice of law including: (a) appearing as counsel or advocate,
(b) drawing, revising or settling
(i) a petition, memorandum, notice of articles or articles under the Business Corporations Act, or an application, statement, affidavit, minute, resolution, bylaw or other document relating to the incorporation, registration, organization, reorganization, dissolution or winding up of a corporate body,
(ii) a document for the use in a proceeding, judicial; or extrajudicial,
…
(iv) a document relating in any way to a proceeding under a statute of Canada or British Columbia,
(v) an instrument relating to real or personal estate that is intended, permitted or required to be registered, recorded or filed in a registry or other public office.

Can a Strata manager prepare a letter of demand for arrears Strata Fees?

Answer pending.

Can a Strata manager prepare the Strata’s Bylaws and Rules?

No.

Can a Strata manager prepare a Resolution for presentation at the AGM?

No. This is part of the “practice of law” under subsection (b)(i)
(b) drawing, revising or settling (i) a petition, memorandum, notice of articles or articles under the Business Corporations Act, or an application, statement, affidavit, minute, resolution, bylaw or other document relating to the incorporation, registration, organization, reorganization, dissolution or winding up of a corporate body.

Can a Strata manager sign the Regulatory forms on behalf of the Strata Corporation?

The Strata Property Act specifically authorizes the preparation and execution of regulatory forms G and H by strata managers. Pursuant to the rules of interpretation the remainder of of the regulatory forms are not.

Can a Strata manager Register a Strata Lien?

No.

Can a Strata manager instruct a Notary to register a Strata Lien?

Answer pending.

What can happen if a Strata manager supplies unauthorized services?

The provision of legal services by unauthorized persons is illegal and Strata managers and Property Management Companies who supply these services
– are guilty of various statutory and regulatory offenses;
– may be prosecuted by the various regulatory bodies;
– will be liable to the Strata Corporation and its Owners if something goes wrong. For example, if a lien for unpaid arrears were registered against the wrong property and the correct lot sold without unpaid arrears being paid to the strata corporation, the drafter of the instrument could be found personally liable for this loss;
– may not be covered by their insurance for these actions. – It is important for licensees to note that the Real Estate Errors and Omissions Insurance Corporation may deny coverage for conduct that is outside the scope of their license to provide real estate services

Our Strata manager is supplying the “unauthorized services” for free.. Does this make a difference?

No.

Section 1(1)(b)(v) of the Legal Profession Act provides that “practice of law” includes:
(b)(v) drawing, revising or settling an instrument relating to real or personal estate that is intended, permitted or required to be registered, recorded or filed in a registry or other public office. The same section offers an exception to allow volunteers, who provide services without any expectation of a direct or indirect fee, gain or reward, to engage in activities that fall under the definition of “practice of law”.

Strata Managers and Strata Management Companies are not non-for-profit organizations and do not work for free. The services supplied by the Strata Manager are either contractually included in the Property Management Fee (and listed as such) or are delivered at an additional cost (usually also listed in the contract). Any additional services are not agreed to and the Strata Manager is not obliged to deliver these additional services. Should a strata manager deliver any other service for “free”, they are doing so in their personal capacity as it does not form part of the agreed services. None of these actions would be covered by their insurance and the persons delivering and accepting the services would be personally liable for any resulting damages. In this regard it is worthwhile taking note of a Report from the Real Estate Council in December 2009 where this matter is discussed:
“The issue of preparing and executing Strata Property Regulation forms has also been considered by Real Estate Council. It was concluded by this Council and confirmed by the Unauthorized Practice Committee that where the signature of the strata manager is contemplated on the form (e.g. Form G – Certificate of Lien and Form H – Acknowledgment of Payment), strata managers can prepare these forms as part of their general duties so long as they do not charge the client a separate fee for this activity. In this regard, it was suggested that strata managers not charge separately for preparation and execution of these forms as section 1(1) of the Legal Profession Act specifically provides that activities that would normally fall within the definition of “practice of law” are exempted if they are not “performed for or in the expectation of a fee, gain or reward, direct or indirect, from the person for whom the acts are performed.

This advice given to their members is patently incorrect. First, it is based on an incorrect interpretation of the definition of “practice of law”. As explained above, Strata Managers do not qualify for the exception allowing volunteers to “practice law”. Further, the “practice of law” is clearly not in the Strata Managers’ field of expertise, because they do not have the requisite legal training. Due to their lack of expertise, section 3-4 of the Council Rules requires them to advise their clients to seek independent professional advice. Strata managers should not rely on this advice to justify providing legal services to Strata Corporations.

Can the Strata Corporation cancel the Strata Management Contract if they are unhappy?

Yes. Section 39 of the Act deals with cancellation of strata management contracts.

A contract entered into by or on behalf of the strata corporation for the provision of strata management services to the strata corporation may be cancelled, without liability or penalty, despite any provision of the contract to the contrary, (a) by the strata corporation on 2 months’ notice if the cancellation is first approved by a resolution passed by a 3/4 (75%) vote at an annual or special general meeting. The strata corporation does not need any prior approval to cancel the contract in accordance with the terms of the contract or to refuse to renew the contract when it expires. The Strata Property Manager may cancel the contract on 2 months’ notice.

Can medical marijuana be grown inside a strata unit?

If the Owner has a valid license, yes!

However… Under the new marijuana regulations in force as of June 19, 2013, Health Canada will phase out all marijuana production in residential areas, including residential strata lots. The intention is to phase out all residential production under the current scheme by 2014. Instead, all medical marijuana will be produced in secure and highly regulated commercial facilities by professionals. Under the current scheme, there are no specific Health Canada policies dealing directly with medical marijuana being grown in a strata lot. Therefore, it is possible that an owner who lives in a strata lot unit may have been issued a valid production licence under the current regime.

Depending on the circumstances, such an owner or tenant may be in contravention of the Bylaws of their strata corporation pertaining to the health, safety and security of other residents. According to the Regulatory Impact Analysis Statement attached as a preamble to the new marijuana regulations, residential marijuana production is associated with specific concerns, among others, relating to: “the risk of violent home invasion by criminals attempting to steal marijuana, fire hazards due to faulty or overloaded electricity installation to accommodate high intensity lighting for its cultivation, and humidity and poor air quality… Production activities are also linked to the presence of excess moisture in homes creating a risk of mould (particularly associated with drying of marijuana); electrical hazards creating a risk of fire; and exposure to toxic chemicals like pesticides and fertilizers creating risk to residents, including children.”

In response to these concerns, strata corporations may choose to pass bylaws to specifically limit the legal production of marijuana in residential strata units. Since medical marijuana is a recognized treatment for various illnesses, strata corporations should be careful that they are not contravening human rights provisions when they pass bylaws pertaining to legal marijuana production.

Obtaining legal advice is recommended when undergoing this process.

How long must a strata corporation retain documents?

Section 35 of the Strata Property Act regulates this what documents must be retained and the applicable time periods are reflected in regulation 4.1 of the Strata Regulations.
The Strata Corporation must retain the following records for the stated periods:

A CURRENT COPY OF:

– a list of council members;
– a list of owners and their details;
– a list of names and addresses of mortgagees who have filed a Mortgagee’s Request for Notification under section 60;
– a list of names of tenants;
– assignments of voting or other rights by landlords to tenants under sections 147 and 148;
– this Act and the regulations;
– the bylaws and rules.

FOR 2 YEARS

– correspondence sent or received by the strata corporation and council.

FOR 6 YEARS

– Minutes of annual, special general meetings, council meetings and the results of any votes held at these meetings;
– Books of account showing money received and spent and the reason for the receipt or expenditure;
– waivers and consents under section 41, 44 or 45;
– written contracts to which the strata corporation is a party; (Note: records must be retained for 6 years after the termination or expiration of the contract or policy)
– the budget and financial statement for the current year and for previous years;
– income tax returns, if any;
– bank statements, cancelled cheques and certificates of deposit;
– Information Certificates issued under section 59.

PERMANENT

– The registered strata plan and any strata plan amendments as obtained from the land title office;
– Resolutions that deal with changes to common property, including the designation of limited common property;
– Any decision of an arbitrator or judge in a proceeding in which the strata corporation was a party, and any legal opinions obtained by the strata corporation;
– Any depreciation reports obtained by the strata corporation under section 94.

OTHER PERIODS

– Any reports obtained by the strata corporation respecting repair or maintenance of major items in the strata corporation, including, without limitation, engineers’ reports, risk management reports, sanitation reports and reports respecting any items for which information is, under section 94, required to be contained in a depreciation report. – (These records must be retained until the disposal or replacement of the items to which the reports relate).
– Any other records required by the regulations – (the period stipulated by that specific regulation).

Who may vote at a AGM?

All owners who are eligible voters may vote at a AGM or SGM

When is an Owner an non-Eligible Voter?

Persons not included in s. 54 of the Act, and all owners who are prohibted from voting because the strata corporation is entitled to register a lien against the Owner’s Strata Lot (and the strata has a bylaw persuant to s. 53(2)).

For the purposes of voting at an AGM or SGM; When is the Strata Corporation entitled to register a lien against the Strata Lot?

When the following is in place:
(a) The Strata Corporation has a bylaw in place pursuant to s. 53(2) of the SPA, which section stipulates that the strata may make a bylaw that prohibits an owner from voting at an AGM or SGM;
(b) The Owner is in arrears with s. 116 fees;
(c) a s. 112(2) notice has been given; and
(d) 14 days (plus 5) have elapsed from the date of the notice.

What are s. 116 fees?

(a) strata fees; (b) a special levy; (c) a reimbursement of the cost of work referred to in section 85; (d) the strata lot’s share of a judgment against the strata corporation [s. 116(1)] or interest thereon.

My strata fees are up to date, but I owe fines. May I vote at an AGM or SGM?

Yes. Fines are not lienable in terms of s. 116 of the SPA.

I am not an eligible voter; may I vote when a unanimous vote is required?

Yes. [s. 53(2)]

My strata lot is lienable but I made a payment arrangement which the strata council accepted. May I vote at the AGM/SGM?

Yes. [s. 116(3)(b)]

My strata lot is lienable and I made a payment arrangement which the strata council accepted; but I defaulted on this arrangement. May I vote at the AGM/SGM?

No. The default will not be acceptable to the strata corporation [s. 116(3)(b)]