Effective December 12, 2013, the provincial government brought into force a significant change to the Strata Property Act.[1] The change creates a new remedy to override the defeat of a special levy for repairs, if certain criteria are met.

New Remedy

Normally, to approve a special levy for repairs, a 3/4 vote of the eligible voters at a general meeting is necessary. As a result of the amendment, where a resolution for a special levy for repairs fails, the strata corporation may apply to the court to approve the special levy if the number of votes cast in favour of the resolution is more than half of the votes cast. Once approved by the court, the strata corporation may proceed as if the eligible voters had approved the special levy in the usual way.

For example, suppose at a general meeting to approve a special levy there are 100 votes present, either in person or by proxy, all of which are cast. To pass, the resolution requires at least 75 votes in favour. When the vote occurs, there are 60 votes in favour and 40 against. Since the number of votes in favour (60 votes) is more than half of all the votes cast (50 votes, being half of 100), the strata corporation may apply to the court to approve the special levy, even though the eligible voters defeated it.

Who May Apply?

Only a strata corporation may seek this new remedy, not an individual owner or tenant.

Authorization to Apply

At the earliest opportunity, a strata corporation should consult its lawyer whether to ask the eligible voters to authorize the corporation to ask the court to approve the special levy. Where a strata corporation sues as a representative of all the owners, the Strata Property Act typically requires the eligible owners to authorize the proceedings by a 3/4 vote.[2] On the other hand, the same naysayers who defeated the special levy may defeat a resolution to apply to court to approve it. If so, this would entirely defeat the purpose of this new remedy.

Purpose of the Special Levy

This new remedy only applies where the strata corporation seeks a special levy to repair common property or a common asset. In plain terms, a common asset is property belonging to a strata corporation; for example, where the corporation owns a strata lot used as a caretaker’s suite. In addition, the repair must be, “necessary to ensure safety or to prevent significant loss or damage, whether physical or otherwise.”[3]

Time Limit

Finally, this remedy has a 90 day limitation period. A strata corporation that wishes to ask the court to approve a special levy must apply within 90 days after the vote where the special levy failed.[4]

 


[1] Strata Property Amendment Act, 2009, S.B.C. 2009, c. 17, s. 25 (amends the Strata Property Act, s. 173) brought into force by B.C. Reg. 263/2013 (12 December 2013).

[2] Strata Property Act , ss. 171 and 173.1.

[3] Strata Property Act,s. 173(2).

[4] When calculating the 90 day period, the Interpretation Act, R.S.B.C., c. 238, s. 25(5) requires us to exclude the first day and include the last.