Amending Bylaws

The strata corporation may amend the statutory bylaws by changing their wording, or otherwise deleting or adding to them. 1

 

Special Restrictions on Bylaw Amendments

The Strata Property Act contains the following restrictions on the extent to which a strata corporation may amend its bylaws.

Amendments to the bylaws are not enforceable if they contravene the Strata Property Act, the regulations, the Human Rights Code or any other law. For instance, the Strata Property Act requires every strata corporation to establish a CRF. Suppose a strata corporation passes an amended bylaw prohibiting the corporation from having a CRF. The new bylaw is unenforceable because it violates the Strata Property Act. Nor would it make any difference if the members voted unanimously in support of the new bylaw because it still violates the statute. 2

Amendments to the bylaws are not enforceable if they destroy or modify certain easements under the Strata Property Act. The Act creates various easements, among other things, to protect the vertical and horizontal support given by the strata lots to one another. 3

With some exceptions, bylaw amendments are not enforceable if they prohibit or restrict the right of an owner of a strata lot to freely sell, lease, mortgage or otherwise dispose of his or her lot. The Act, however, permits exceptions for bylaw amendments that restrict rentals, or the age of persons who can reside in the strata lot or activities governing the sale of a strata lot, such as holding open houses. 4

An amended bylaw that limits rentals must set out the procedure for administering the limit. In addition, the bylaw must not require the screening of tenants, establish screening criteria, require the approval of tenants or require the insertion of terms in a tenancy agreement. 5

An amended bylaw must not prohibit or unreasonably restrict activities relating to the sale of a strata lot, including locations for posting signs and open houses. 6

In addition, an amended bylaw must not require someone to use a voluntary dispute resolution process to resolve disputes among owners, tenants and the corporation, or confer on any person the authority to make a binding decision in a dispute. 7 In October 2009 the province passed amendments 8 to the Strata Property Act which, at the date of this writing, are not yet in force. If the province brings these amendments into force, the government may require a strata corporation to establish a process for the voluntary resolution of disputes. A regulation is necessary to bring these amendments into force. 9

Procedure

If a strata corporation wishes to amend the bylaws it must do so at a general meeting.

The notice for the general meeting must properly describe the resolution to amend the bylaws. In most cases, the resolution will require a 3/4 vote to pass. The following table shows the type of vote necessary to amend a bylaw, depending on the circumstances: 10

Type of Vote Necessary to Amend a Bylaw

Strata Use

Vote Required

Entirely residential

3/4 vote

Entirely non-residential

3/4 vote or as otherwise provided in the bylaws

Mixed residential and non-residential

Both a 3/4 vote of the residential lots and a 3/4 vote of the non-residential lots respectively, or as otherwise provided in the bylaws for the non-residential lots

If some or all of a strata development is non-residential, it is essential to first check the existing bylaws for any provision that sets a special voting threshold for amending the bylaws in the future. For instance, in a non-residential strata development suppose the existing bylaws say that all amendments to the bylaws must be approved by majority vote. In that non-residential strata corporation, only a majority vote is needed to approve a resolution to amend the bylaws.

In Chapter 12, Meetings, the reader will find a lengthy explanation about notice for a general meeting, as well as amending a resolution at the meeting. To pass an amended bylaw at a general meeting, however, the following requirements are especially important. If a resolution requires a 3/4 or unanimous vote, the notice for the general meeting must include the proposed wording of the resolution to amend the bylaws. 11 During the general meeting, amendments may be made to the proposed wording of the resolution requiring a 3/4 vote, if the amendments do not substantially change the resolution and are approved by a 3/4 vote before the vote on the resolution. 12

If the resolution to amend the standard bylaws requires a 3/4 vote and it passes, the strata corporation may have to wait eight days before taking steps to implement the bylaw amendment, depending on voting results. 13 If the number of votes in favour of the resolution represents less than 50 per cent (50%) of all of the strata corporation’s votes, the strata corporation will have to wait eight days to permit eligible voters an opportunity to demand a new general meeting to reconsider the matter. For more information, see “Reconsideration of a Resolution” in Chapter 14, Voting.

When passing a resolution to amend the bylaws, a strata corporation should always observe the formality of a vote in accordance with the Strata Property Act, even where there is apparently a broad consensus among the eligible owners. In Strata Plan NW 499 v. Louis Estate the strata corporation held a general meeting to vote whether to adopt some new bylaws, including an age restriction bylaw. 14 Later, in court, one of the issues was whether the bylaw amendments were properly passed. The proposed new bylaws were apparently presented together, as a single package. At the meeting, the package included five proposed bylaws that were especially contentious, and the minutes recorded a separate vote for each of those bylaws. The minutes, however, did not record any vote for the bylaw package as a whole. When the Supreme Court of British Columbia first heard the matter, the court found that the minutes of the meeting, read as a whole, indicated that the owners intended to adopt the overall package of bylaws, even though no formal vote was taken. The court noted that the owners were not lawyers and did not have the benefit of legal advice concerning the necessary formalities. 15 On appeal, the British Columbia Court of Appeal disagreed with the lower court on this point. According to the Court of Appeal, there must be minimum compliance with the requirements of the Strata Property Act before it can be said that the amended bylaw of a strata corporation is valid and binding on those affected by it. 16 Apart from the five bylaws on which votes were specifically held, a formal vote was necessary to adopt the rest of the proposed bylaws in the package.

A strata corporation must inform the owners and tenants about any amendment to the bylaws as soon as feasible after the amendment is approved. 17 In the case of resident owners or tenants, the Strata Property Act permits a strata corporation to inform the development’s residents by any method, including: 18

  1. (a) leaving a document containing the information at a location designated by the strata corporation for the distribution of such information; or
  2. (b) posting a document containing the information in a part of the common property designated by the strata corporation for the posting of such information.

In other words, it is not necessary for a strata corporation to formally deliver a notice to each resident owner or tenant, if the corporation uses one of these or any other reasonable method to inform the residents. Of course, the strata corporation must still formally notify any non-resident owner or tenant who is entitled to be informed. The requirements for delivering notice are explained in Chapter 12, Meetings.

Amended Bylaw Must Be Filed At Land Title Office

An amendment to the bylaws is not legally effective until the strata corporation files the amendment at the Land Title Office with the strata plan. 19 The Strata Property Act requires a strata corporation to file the amendment in a prescribed form called an “Amendment to Bylaws” (Form I). The form is found among the forms in the regulations.

Before December 11, 2009, the Strata Property Act allowed only 60 days from the date of approval to file an amended bylaw at the Land Title Office. As a result of amendments to the Act effective December 11, 2009, the 60-day time limit disappeared. 20 There is no longer a 60 day limit for filing an amended bylaw. Following approval at a general meeting, the amended bylaw may be filed at any time.

Amendments Contemplated by the Strata Property Act

Subject to the legal restrictions described earlier in this chapter, a strata corporation may change any or all of its statutory bylaws. The Strata Property Act specifically contemplates that strata corporations may amend their bylaws to deal with certain matters. A table of amendment subjects suggested by the Act can be found in Appendix E.

When Does an Amended Bylaw Apply?

An amended bylaw applies as soon as the strata corporation files the amendment at the Land Title Office in the prescribed form, unless the Strata Property Act, the regulations or the bylaw provide otherwise.

In some cases, the Strata Property Act relieves certain persons and pets from the immediate consequences of an amended bylaw. These are sometimes called grandfather provisions. Section 123 of the Act grandfathers the following types of amendments:

Age Restrictions

A bylaw restricting the age of persons who may reside in a strata lot does not apply to someone residing there when the bylaw is passed. For more information about age restrictions, see Chapter 23, Age Restriction Bylaws.

Pet Prohibitions

A bylaw prohibiting pets does not apply to a pet living with an owner, tenant or occupant at the time when the bylaw is passed.

In a phased strata development, if certain conditions exist, the strata corporation may not make, modify or repeal a bylaw that deals with keeping or securing pets. Specifically, so long as the developer in a phased development complies with the dates in the Phased Strata Plan Declaration, or in an amended Declaration, for the beginning of construction of each phase, the strata corporation may not create, change, or repeal any bylaws dealing with these pet matters until one of the following occurs: 21

  • the annual general meeting is held following the deposit of the final phase, or
  • in accordance with the Strata Property Act, the developer elects not to proceed with the next phase, or
  • the Supreme Court of British Columbia declares that the developer is deemed to have elected not to proceed, or
  • the strata corporation obtains the written consent of the developer.

In addition, the province’s Guide Animal Act gives a person with a disability the right to be accompanied by a guide animal in various circumstances, despite any other legislation to the contrary. The Act defines a person with a disability as a person who is apparently blind or otherwise disabled and is dependent on a guide animal or white cane. According to the Guide Animal Act, the term guide animal refers to an animal specified in the regulations, or for which a certificate has been issued. To determine whether the Guide Animal Act immunizes a person from a pet restriction bylaw, a strata corporation should obtain legal advice. 22

Rental Restrictions

In the case of a bylaw that restricts rentals, the Strata Property Act grandfathers certain strata lots, delays the application of the bylaw to some strata lots, and creates exemptions from the bylaw. For more information about rental restrictions, see Chapter 22, Rental Restriction Bylaws.


 

Notes:

  1. Strata Property Act, s. 126. For information about the Schedule of Standard Bylaws, see Chapter 19, Statutory Bylaws and the Effect of the Strata Property Act.
  2. Strata Property Act, ss. 92, 121(1)(a).
  3. Strata Property Act, ss. 69, 121(1)(b).
  4. Strata Property Act, ss. 121(1)(c); 121(2) and 122.
  5. Strata Property Act, s. 141(1), (3). Section 1(1) of the Act defines the term, “tenant” to mean a person who rents all or part of a strata lot, and includes a subtenant. In the Act, however, the term tenant does not include a leasehold tenant in a leasehold strata plan as defined in section 199, or a tenant for life under a registered life estate.
  6. Strata Property Act, s. 122.
  7. Strata Property Act, s. 124(2).
  8. Strata Property Amendment Act, 2009, S.B.C. 2009, c. 17, s. 33(c) (amends the Strata Property Act, s. 292(2) by expressly authorizing the government to make regulations requiring a strata corporation to establish a process for the voluntary resolution of disputes).
  9. Strata Property Amendment Act, 2009, s. 37.
  10. Strata Property Act, s. 128(1).
  11. Strata Property Act, s. 45.
  12. Strata Property Act, s. 50(2).
  13. Strata Property Act, s. 51. Section 51(2) of the Strata Property Act says the strata corporation must not take any action to implement the resolution for “one week”. According to section 25(5) of the Interpretation Act, R.S.B.C. 1996, c. 238 we must calculate this one-week period by excluding the first day and including the last day, which translates into eight days.
  14. The Owners, Strata Plan NW 499 v. Louis, 2009 BCCA 54, rev’g in part 2008 BCSC 759 (sub nom The Owners, Strata Plan NW 499 v. Kirk).
  15. The Owners, Strata Plan NW 499 v. Kirk, 2008 BCSC 759 at para. 27.
  16. The Owners, Strata Plan NW 499 v. Louis, 2009 BCCA 54 at para. 17.
  17. Strata Property Act, s. 128(4).
  18. Strata Property Act, s. 65.
  19. Strata Property Act, s. 128(2).
  20. Strata Property Amendment Act, 2009, s. 21 (amends the Strata Property Act, s. 128).
  21. Strata Property Regulation, s. 13.3(2). For information about phases, see Chapter 31, Phases.
  22. Guide Animal Act, R.S.B.C. 1996, c. 177, ss. 1 (definition of “person with a disability”) and 2.