Limits to the Power of Bylaws

CAN A BYLAW FIX PROBLEMS WITH THE STRATA PROPERTY ACT?

The Strata Property Act provides a legislated collection of obligations for Stratas. One of those obligations is that a Strata must have bylaws. The bylaws may provide for the control, management, maintenance, use and enjoyment of the strata lots and common property. Bylaws may also address the administration of the Strata.  

Many owners believe that a Strata can adopt bylaws to change the way that the Strata Property Act applies to their Strata.

However, the Strata Property Act is explicit that a bylaw is unenforceable to the extent that it contravenes the Act.

It is important for Owners and Council to recognize that the Strata Property Act provides significant power to Stratas and, to protect Owners and prevent abuses, there are constraints on what a Strata can do. Although for some it may seem that a Strata should have greater power over Owners, that is not the balance created by the government.

CAN A BYLAW IMPOSE A PENALTY OR CONSEQUENCE NOT IN THE STRATA PROPERTY ACT?

The Strata Property Act provides four powers that a Strata can use to enforce a bylaw:

1. Imposing a fine.

2. Doing work on or to a strata lot, the common property or common assets to remedy a contravention of a bylaw.

3. Removing objects from the common property or common assets to remedy a contravention of a bylaw.

4. Denying access to a recreational facility if the person has contravened a bylaw or rule relating to that recreational facility.

However, it is not uncommon for Stratas to adopt bylaws that attempt to expand on those powers.

As examples:

1. We have seen bylaws that state that if there are multiple complaints received about a pet, that the Strata will require that pet be removed from the premises.

2. We have seen bylaws that state if an owner’s strata fee payment is not honoured by their bank because of Non-Sufficient Funds that a set amount will be added to their strata fees.

These bylaws are unenforceable to the extent that they attempt to expand the authority and power of a Strata to create a penalty or consequence for the breach of a bylaw.

It is important for Owners and Council to recognize that the Strata Property Act provides significant power to Stratas and but that authority has limits because Stratas are not expected to have the resources to provide the full safeguards that an Owner should have under the rule of law and procedural fairness. Courts and the Civil Resolution Tribunal (CRT) have powers to impose penalties and consequences that are greater than a Strata, and a Strata can apply to those institutions when its is unable to enforce a bylaw with its limited power to penalize.

CAN A BYLAW MAKE AN OWNER RESPONSIBLE FOR THE REPAIR OF COMMON PROPERTY ?

A Strata is responsible for the repair of common property unless common property has been designated as limited common property and there is a bylaw making an owner responsible for the repair and maintenance of that property.

However, we have seen several bylaws that are a variation on the idea that an owner is responsible for any alteration that they make to common property. This is contrary to the Strata Property Act and cannot be done by bylaw. However, it can be done by contract and is commonly a condition of a Strata providing written authority for an owner to alter the common property.

CAN A BYLAW LIMIT WHEN OWNERS CAN VOTE?

The Act permits a Strata, by bylaw, to prohibit the exercise of a vote for a strata lot if the Strata is entitled to register a lien against that strata lot.

However, there are Stratas that have attempted, by bylaw, to expand this power to include prohibiting the vote of a strata lot if there is an unpaid fine for that strata lot. This is not permitted, and the right to vote is a fundamental aspect of the democratic nature of a robust and resilient Strata Community.

We have also seen bylaws that attempt to regulate the authority of an Owner to appoint a proxy. These are also unenforceable, and we have written about why the right to a proxy is an integral aspect of democracy.

CAN A BYLAW EXPAND WHAT IS INCLUDED AS A STRATA FEE?

The Strata Property Act defines Strata Fees as a “strata lot’s shares of the total contributions budgeted for the operating fund and contingency reserve fund.” We have an article that explains in detail the nature of Strata Fees. Critically, the definition of a Strata Fee is important because several things relate only to unpaid Strata Fees. The most important of these is the ability of a Strata to register a Certificate of Lien on the title to a Strata Lot when the Strata alleges that there are unpaid Strata Fees. We have written about the requirements before a Certificate of Lien can be registered and how a Certificate of Lien is registered in other articles.

However, there are bylaws that purport to ‘deem’ other debts claimed by a Strata, such as unpaid fines, as strata fees for the strata lot. This is not permitted, because it would greatly expand the authority of a Strata to register a Certificate of Lien on the title to a Strata Lot.

BYLAWS CANNOT CONTRAVENE THE STRATA PROPERTY ACT

Every Strata must have Bylaws and Bylaws are an important part of the proper governance of a Strata. However, a Bylaw cannot be used to change, avoid or expand upon the provisions of the Strata Property Act.

Owners must understand the limits of Bylaws and ensure that there is no attempt, either intentionally or accidentally, to contravene the Strata Property Act.

Owners should also be familiar with the difference between Bylaws and Rules, and we explain Rules in this Article. Similarly, Owners should understand that the repeal, revision or alteration of Bylaws generally happens at a general meeting and must be registered with the Land Title and Survey Authority of British Columbia (LTSA).