With the coming into force of the new Strata Property Act, the rules regarding enforcement of bylaws and rules of a strata corporation have dramatically changed. It is important to recognize that the bylaws of a strata corporation remain either Part 5 of the Condominium Act or the bylaws as amended by a strata corporation until January 1, 2002, unless a strata corporation amended their bylaws prior to that date. While those bylaws remain, it is this writer’s view that the enforcement provisions governing bylaws and rules are those as noted in the Strata Property Act. One must therefore look to Part 7, Division 3 of the new Act.
Under the old Act, if an owner contravened a rule or bylaw, the owner could be fined or an injunction application taken to remedy the contravention. It was my view that fining did not amount to “enforcement”. Further, there was case law that provided that an owner could successfully bring an application before the B.C. Supreme Court for a mandatory injunction requiring a strata corporation to take enforcement proceedings. Under the new Strata Property Act, the strata corporation may impose a fine under s. 130, remedy a contravention under s. 133 or deny access to a recreational facility under s. 134 [per s. 129(1)]. However before enforcing the bylaw or rule, the strata corporation may give a person a warning or may give the person time to comply with the bylaw or rule. Note the use of the word “may”. More about that later.
Fines are dealt with in sections 130 – 132 and 135 of the new Act. Fines can be imposed upon an owner as the result of the conduct of the owner, his/her visitors or an occupant. A fine can be imposed upon a tenant. The strata corporation must set out in its bylaws the maximum amount of a fine for the contravention of a bylaw or rule and if not, the standard bylaws of the Strata Property Act will eventually apply – those are $50.00 for contravention of a bylaw and $10.00 for contravention of a rule. The Regulations provide that by bylaw a strata corporation may impose a maximum fine of $200.00 for a bylaw contravention and $50.00 for a rule contravention. Further, a contravention is deemed to occur every seven days that the contravention continues.
That’s the good news from a strata corporation view. Now the not-so-good news; while as indicated earlier the strata corporation may give warning to an owner regarding enforcing a bylaw or rule, the strata corporation must not impose a fine for contravention of a bylaw or rule unless they have received a complaint and been given the particulars of the complaint, in writing, to the contravening owner with a reasonable opportunity to answer the complaint afforded to the owner. In other words, notice may be given before enforcing, but must be given before imposing any of the enforcement provisions. A Council really has no choice; if they want to enforce, then a complaint must be received and an opportunity given to the contravening owner to answer the complaint, which by s. 135 includes a hearing. In this writer’s view this could result in many contraventions not being enforced due to a complaining owner not being prepared to put the complaint in writing for fear of retribution. Although the new Act does not require a complaint to be in writing, any enforcement as the result of the complaint will require the complaint to be writing because the contravening owner has the ability to respond based upon the written complaint.
You will recall that enforcement can also be remedying a contravention under s. 133 or deny accessing per s. 134. Denying access to a recreational facility will likely be seldom used because the access must be related to the contravention. In other words a parking rule contravention cannot result in the privileges to a swimming pool being denied.
Section 133 is a totally different matter. That section provides that a strata corporation may do what is reasonably necessary to remedy a bylaw or rule contravention, including doing work on a strata lot, the common property or common assets, and removing objects from the common property or common assets. It is hoped that the “teeth” of this section is the use of the word “including”. That would mean that a strata corporation could still obtain an injunction to enjoin an owner/ guest/occupant/tenant from continuing a contravention. Section 135 (remember, that is the “complaint in writing give an owner the right to a hearing” section) provides that a strata corporation must not require a person to pay the costs of remedying a contravention without being heard. One could argue that an injunction application could be pursued without invoking section 135 provided no costs are being claimed. Such a scenario would be unlikely. One must also recognize that section 171(2) requires a strata corporation to obtain a 3/4 vote at an AGM or SGM to commence an injunction application.
What does all this mean? Very simply, the enforcement of any contravention of a bylaw or rule under the Strata Property Act will take time and the owner who has allegedly contravened the bylaw or rule must be fully aware of the particulars of the complaint. The particulars do not include the identity of the complaining owner and any material provided must be redacted to ensure that the complaining owner cannot be identified. This is necessary due to the existence of the Personal Information Protection Act. The Council then must hold a hearing (if requested by the offending owner) to afford that owner an opportunity to respond to the complaint. If more than a fine is warranted the Council must convene a meeting to obtain a 3/4 vote. Perhaps I have become somewhat cynical in my old age. I think that it is important for due process and an owner should have the right to know what the case is against them. However, it has been my experience that there will be owners who will abuse the system to in some way seek retribution against an offending owner, and potential threats when requesting a 3/4 vote for an injunction authorization. In the circumstances it is essential that an offending owner has particulars of an alleged offence, but that those particulars do not include identifying a complaining owner (unless of course they ask to be identified).