Using the Powers of the Strata Property Act

“I can tell you all I know, the where to go, the what to do – You can try to run but you cannot hide from what is inside of you”

Any Major Dude Will Tell You by Steely Dan

WHY CAN A STRATA DO THINGS A BUSINESS OR A PERSON CANNOT DO?

A Strata has powers that businesses and people do not - for example the power to adopt bylaws and impose fines and the power to restrict how property that it does not own is used. These powers come from the Strata Property Act.

A Strata is often referred to as a creature of statute. As a creature of statute, the Strata Property Act is the source of the Strata’s powers and abilities.

A Strata cannot do something that a person could not do, unless it is permitted by the Strata Property Act. If a Strata does something, that a person could not do and that is not authorized in the Strata Property Act, that action is not lawful and is said to be ultra vires, meaning it is outside of the Strata’s powers and legally unenforceable.

It is fairly uncommon, in our experience, for a Strata to do something that there is no reason to think they could do. What is much more common is for a Strata to do something that is beyond what it is permitted to do under the Strata Property Act. We described some examples in our article about the limits of bylaws.

WHAT IS AN ULTRA VIRES BYLAW?

The Strata Property Act provides that a Strata’s bylaws are for the control, management, maintenance, use and enjoyment of the Strata Lots, Common Property and common assets of the Strata and for the administration of the Strata.

The Strata Property Act also provides that a bylaw is unenforceable if it contravenes the Act, the Human Rights Code, or any other legislation or law (including the common law made by judges).

A bylaw that contravenes the Strata Property Act, the Human Rights Code, or any other legislation or law is ultra vires and unenforceable.

CAN A STRATA BE ULTRA VIRES IN ENFORCING BYLAWS?

The Strata Property Act provides that a Strata may enforce a bylaw or rule by:

• Imposing a fine against an Owner or Tenant,

• Doing work on or to a Strata Lot, the Common Property, or a common asset,

• Removing objects from the Common Property or a common asset.

A Strata cannot enforce a bylaw or rule by imposing a fine on a visitor. Where a visitor breaches a bylaw or rule, the fine is imposed against the Owner or Tenant who admitted the visitor onto the premises.

A Strata cannot enforce a bylaw by removing objects from within a Strata Lot. The Strata can do work on a Strata Lot, and it can remove objects from the Common Property, but it cannot remove objects from within a Strata Lot. We sometimes see bylaws that say the Strata will remove a hot water tank or a pet from a Strata Lot. This is beyond the authority of the Strata.

A Strata that acts beyond its authority to enforce a bylaw or rule has acted ultra vires of the Strata Property Act and the enforcement action is unlawful.

CAN A STRATA BE ULTRA VIRES IN DELAYING THE HOLDING OF A HEARING?

The Strata Property Act provides that an Owner or Tenant may request a hearing at a council meeting, and the Council must hold the hearing within four weeks of the request.

A Strata cannot adopt a policy or bylaw which extends the time to hold a hearing. Such a policy or bylaw would be ultra vires and unlawful.

A STRATA CANNOT ACT BEYOND ITS AUTHORITY

A Strata is a creature of statute. It cannot perform an act that is something a person could not do or that is beyond its powers in the Strata Property Act. A Strata may try and do something beyond its powers in the Strata Property Act, but such actions will be ultra vires and unlawful.

This article only scratches the surface of how a Strata may act beyond its powers in the Strata Property Act and what it means to be ultra vires. Any Owner wanting to learn more about the extent of the Strata’s powers should carefully review the Strata Property Act. Robust and resilient Strata communities are often headed by Councils who carefully review the Strata Property Act in order to learn the extent of the Strata’s authority.

As Steely Dan sings, I can tell you all I know, the where to go, the what to do, you can try to run but you cannot hide from what is inside of you. This is true for Stratas. The requirements of the Strata Property Act are present in all Stratas.