Owners Can Rely on a Strata's Prior Approval

CAN AN OWNER RELY ON A STRATA'S PRIOR APPROVAL?

An Owner can generally rely on a Strata's own prior approval, and a court must actually weigh that reliance if the Strata later tries to walk the approval back. Whether an Owner held a reasonable expectation about how the Strata would act is one relevant factor in the test for significant unfairness under s.164 of the Strata Property Act (King Day Holdings Ltd. v. The Owners, Strata Plan LMS3851, 2020 BCCA 342). A decision-maker who treats that expectation as legally irrelevant, rather than simply giving it appropriate weight, commits an extricable error of law (Kunzler v. The Owners, Strata Plan EPS 1433, 2021 BCCA 173). Not every expectation qualifies, though, and not every approval survives a later challenge to the Strata's own authority to have given it.

WHAT MAKES AN OWNER'S EXPECTATION "REASONABLE" ENOUGH TO MATTER?

An Owner's expectation needs an affirmative representation behind it, not just a general impression. Our understanding is that a reasonable expectation under s.164 requires the Strata, a developer, or a zoning Bylaw to have actually led the Owner to believe they would have the specific thing they sought — general permissive marketing or zoning language, without more, is not enough (Kunzler, 2021 BCCA 173). A Strata Council's specific approval of a particular alteration or use is the clearest example of that kind of affirmative representation: unlike a marketing brochure or a zoning designation, it addresses the Owner's specific request directly.

DOES AN OWNER HAVE TO ACT ON THE APPROVAL BEFORE IT BECOMES PROTECTED?

An Owner's expectation is on firmer ground once they have actually acted on the approval, not merely obtained it. Our understanding is that where an Owner has taken only preparatory steps toward a use, such as hiring a professional or applying for a permit, without beginning actual use or making a binding commitment, they have no crystallized right for a later Bylaw or decision to disturb (Kunzler, 2021 BCCA 173). For example, an Owner who receives Council's written approval for a balcony enclosure and then actually builds it, at real expense, stands in a materially different position than an Owner who received the same approval but has not yet lifted a hammer.

WHAT HAPPENS IF THE STRATA LATER TRIES TO WITHDRAW ITS APPROVAL?

Withdrawing an earlier approval, after an Owner has relied on it, can itself be significantly unfair. Our understanding is that a Bylaw passed by a vote disproportionately cast by a bloc exempt from its own operation, targeting a minority of Owners who had a reasonable expectation founded on the Strata's own prior conduct, is significantly unfair, even though nothing was procedurally improper about how the vote was held (Semmler v. The Owners, Strata Plan NES3039, 2018 BCSC 2064). This is because s.164 is remedial: a fair, democratic process does not by itself immunize a significantly unfair outcome from review (Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44). A Strata that follows every proper step to reverse a decision can still have acted significantly unfairly if the reversal defeats an Owner's reasonable, affirmatively founded reliance.

IS THERE ANY LIMIT TO RELYING ON A STRATA'S APPROVAL?

An Owner cannot rely on an approval the Strata never had the authority to give in the first place. Our understanding is that if a Bylaw is beyond the Strata Corporation's power, an Owner's past compliance with it, or the Strata's own past acquiescence in it, cannot found an estoppel that validates or enforces it (*B.P.Y.A. 1163 Holdings Ltd. v. The Owners, Strata Plan VR 2192, 2008 BCSC 695). The same logic applies to an approval: a Council's yes cannot manufacture authority the Strata Corporation never had, however reasonably the Owner relied on it.

AN OWNER'S RELIANCE ON A STRATA'S OWN APPROVAL DESERVES REAL WEIGHT

An Owner who receives a Strata's specific approval, and then actually acts on it, has a right that a court or the Tribunal must weigh, not something the Strata can withdraw for free. That reliance carries the most weight where the approval was an affirmative, specific representation and the Owner has gone beyond preparatory steps to real use or real expense. However, that weight has a ceiling: it cannot turn an approval the Strata never had the power to give into a valid one. A robust and resilient Strata Community gives its approvals carefully in the first place, because an Owner who builds on one is entitled to have that reliance taken seriously.