Authorizing An Owner to Have Short Term Exclusive Use of Common Property
- Rebekah Southard
- Mar 29
- 3 min read
HOW CAN A STRATA BE FLEXIBLE IN AUTHORIZING USE OF THE COMMON PROPERTY?
For very practical reasons a Strata needs to be able to take the property rights from one owner to give them to another, and the Strata Property Act gives the Strata a practical solution that includes reasonable controls on this exceptional power. Through Exclusive Use Agreements, the Council can allocate property rights in a flexible way without giving up ownership or creating permanent rights. These agreements are most commonly used for parking spaces and storage areas. They permit a Strata to allow an individual owner or tenant to have exclusive use of an area of common property, without permanently “taking away” other Owners property rights.
WHAT IS AN EXCLUSIVE USE AGREEMENT?
A Strata cannot simply give an owner indefinite rights over property that is owned collectively. This is because common property is owned by all owners. Importantly, the Strata does not own the common property, so it cannot deal with the common property except as expressly permitted by the Strata Property Act or with the consent of the owners of that property.
Instead, the Council can approve a resolution to give an owner or tenant the exclusive right to use part of the common property or a special privilege in relation to common property for up to one year at a time. This arrangement can be renewed each year.
This is similar to the designation of common property as limited common property, but it has three key advantages:
An Exclusive Use Agreement only requires a Council resolution, not a ¾ vote of the owners and a filing with the Land Titles Office.
An Exclusive Use Agreement can be made subject to conditions which create an opportunity to require conditions that are not specifically provided by the Strata Property Act.
An Exclusive Use Agreement can be limited to a special privilege instead of exclusive use, and this means that the Strata can continue to have some rights of access over that area of the common property.
WHAT TYPE OF CONDITIONS CAN BE DEMANDED BY THE STRATA UNDER AN EXCLUSIVE USE AGREEMENT?
The ability to require conditions is an important power that should be fully considered and understood by both members of council and the owners requesting an Exclusive Use Agreement. This allows the Council to essentially form a contract with an owner that can include any conditions permitted by the law of contract.
For example, the Council may require:
Payment of a fee for the use of the area.
Cleaning or maintenance of the area.
That the area be used only for a specific purpose (such as parking a vehicle and not for vehicle maintenance).
Limits on what can be kept in the area (for example, no hazardous materials).
Access rights for the Strata or other people.
Because the agreement is only for a year, the Council can change these conditions over time or choose not to renew the agreement at all. This allows the Strata to respond to changing needs and unforeseen problems.
Furthermore, the Strata Property Act specifically permits the Strata to cancel an Exclusive Use Agreement within the year if it provides reasonable notice of the cancellation. The fact that the Strata Property Act only requires notice and not a reason, it means that the Strata has the ability to essentially “change its mind” even if the owner has complied with all the conditions.
EXCLUSIVE USE AGREEMENTS ARE IMPORTANT TOOLS FOR ROBUST AND RESLIIENT STRATA COMMUNITIES
Exclusive Use Agreements are a practical tool available to Stratas. They allow the Council to assign, constrain, and periodically reassess the use of common property, all without requiring a ¾ vote of the owners.
Most importantly, they allow the Council to impose conditions on the use of a specific space in a way that cannot be achieved through bylaws or user fees.
Robust and resilient Strata Communities identify that short term use or common property by Owners is an important way to deal with the needs of the community in a way that is responsive and respectful and but does not fundamentally interfere with ownership rights. For example, for most Owners, it would seem reasonable that someone with mobility issues would be given the right to park a vehicle in a space that minimized the effect of that disability and this is easily achieved through a short term use agreement.
