Enforcing Bylaws and Rules

The strata council is responsible for enforcing the bylaws and rules, subject to the Strata Property Act, the regulations and the bylaws, 1 by following a series of mandatory steps.

 

Enforcement Procedures

Before a strata corporation may impose a penalty for contravening a bylaw or rule, the corporation must first comply with the following compulsory preconditions.

1. The strata council must receive “a complaint about the contravention” of a bylaw or rule. Where the contravention itself is plain and obvious, however, strata council may inform itself about the violation without the necessity of a complaint alleging injury from the breach. In one case where the bylaws required wall-to-wall carpeting to reduce noise, two owners breached the bylaw by installing laminate flooring in their strata lot. When the strata corporation applied to the court for an order to enforce the bylaw, the owners defended, in part, on the basis that no one had actually complained about noise to strata council. The court held that since the contravention alone was plain and obvious, the strata council could inform itself about the violation and enforce the bylaw. The council did not have to wait for someone to complain about noise caused by the hard flooring. 2

Before proceeding with a complaint, the strata council may give the person a warning or an opportunity to comply with the bylaw or rule. 3

2. If the strata council wishes to proceed with a complaint, council must give particulars of the complaint to the relevant owner or tenant, in writing. If a tenant is the subject of the complaint, the strata corporation must also notify that person’s landlord about the allegation. 4

The Strata Property Act dictates how strata council must deliver its written particulars to the owner or tenant who is the subject of the complaint. 5 The requirements for delivering notice are explained in Chapter 12, Meetings.

3. The strata council must then give the person accused of wrongdoing a reasonable opportunity to answer the complaint. If that person wishes a hearing, the strata council must hold one. According to the regulations, a hearing means “an opportunity to be heard in person at a council meeting.” A fine, for instance, was not enforceable where the strata council decided that an owner was guilty and imposed a fine before the accused person was given an opportunity to answer the complaint. 6

If a strata council member is the subject of the complaint, he or she must not participate in any decision about the allegation. If all of the owners are on council, however, the member is permitted to participate in the decision. 7

4. After considering any response, the strata council must promptly provide its written decision in the matter to the person affected. The same requirements that govern delivery of the written particulars apply to delivering the written decision. 8

5. If the council does not comply with these prerequisites, the corporation may not impose a fine, require an owner to pay the cost of remedying the breach, or deny the owner access to a recreational facility, as described later in this chapter. In that situation, the corporation may still, however, order an owner to comply with the bylaw in question and, if necessary, seek a court order to comply. 9

6. Once a strata corporation complies with these requirements it may impose a fine or other penalty for a continuing contravention without further compliance with these prerequisites. If strata council decides to impose a penalty for a continuing infraction, council should record the decision in its minutes together with a description of the evidence on which the decision was based. 10 If the penalty is later challenged in court or arbitration proceedings, the strata corporation will have a record to explain the basis for strata council’s decision.

Enforcement Methods

The Strata Property Act permits a strata corporation to enforce a bylaw in several ways. The strata corporation may impose a fine, remedy a contravention or deny access to a recreational facility.

A Fine

The strata corporation can impose fines against owners and tenants to the extent permitted by the bylaws. Every strata corporation must set out in its bylaws the maximum amount it may fine an owner or tenant for each violation of a bylaw or rule. 11

If the strata corporation uses the Standard Bylaws regarding fines, the maximum fines are as follows: 12

  • $50 for each contravention of a bylaw, and
  • $10 for each contravention of a rule.

If the contravening activity or default continues without interruption for more than seven days, the Standard Bylaws permit the strata corporation to impose a fine every seven days. 13

A strata corporation may amend its bylaws to set different maximum fines for the breach of different bylaws and rules. The corporation may also amend its bylaws to establish the frequency at which different fines may be imposed for a continuing contravention of a bylaw or rule. The amounts and frequency of any fines, however, must not exceed the maximums established in the regulations. The regulations set the following maximum fines: 14

  • $200 for each contravention of a bylaw, other than a rental restriction bylaw,
  • $500 for each contravention of a rental restriction bylaw, and
  • $50 for each contravention of a rule.

According to section 7.1 of the regulations, the maximum frequency with which a strata corporation may impose a fine for a continuing contravention of a bylaw or rule is every seven days.

Under the Law and Equity Act, the Supreme Court of British Columbia has authority to relieve against penalties, as explained later in this chapter. 15 (See “Supreme Court’s Authority to Relieve Fines.”)This authority includes the power to excuse a person from paying a strata corporation fine.

In Drummond v. Strata Plan NW 2654, a strata corporation fined an owner $200 per week for the continuing breach of the corporation’s age restriction bylaw. 16 The owner sued the strata corporation to challenge the bylaw. Ultimately, the owner’s fines amounted to $16,400 by the time the court heard the matter. Although the court upheld the bylaw, the court used its authority under the Law and Equity Act to relieve the owner from most of her accumulated fines. When the court reviewed the strata council minutes, and the council’s correspondence with the owner, the court determined that the council members erroneously concluded they were obliged to impose a fine of $200 per week. The strata council never considered that the $200 figure is a maximum and that it was open to council to impose something less. The court noted the delay in getting to trial caused by the court’s busy calendar, and found it unfair that this delay exposed the owner to greater accrued fines. In all the circumstances, the court used its power under the Act to relieve against penalties and reduced the oustanding fine to $1,000.

The Drummond case highlights the necessity for fairness when a strata council imposes a fine. The Standard Bylaws, for example, say that strata council may fine a particular maximum amount, or in the case of continuous activity, the council may impose a fine every seven days. 17 This language gives strata council a discretion; it does not make the maximum penalty mandatory.

Where bylaws or rules establish a maximum fine, a strata council should consider all the factors involved, including both aggravating and mitigating factors. Instead of starting with a maximum fine, the better approach is to consider what fine is the least amount necessary to reasonably sanction the behaviour in question and to deter the individual, as well as others, from breaching the bylaw or rule in the future. Without going into too much detail, a prudent strata council will accurately record in the minutes of the meeting that before imposing a fine, the council considered the range of possible fines together with other relevant factors.

The Drummond case is authority to say that where a fine is expressed to be a maximum fine, a strata council’s failure to consider whether a fine less than the maximum amount is appropriate may provide a basis for the court to reduce or cancel the fine.

Remedial Work

If an owner or tenant fails to carry out work to remedy a bylaw or rule violation, the strata corporation can do the work and charge the person responsible for the reasonable costs of the work. 18 The strata corporation may carry out remedial work on a member’s strata lot, common property or common assets.

If, however, a strata corporation fails to comply with a prerequisite for enforcing a bylaw or rule by this means, the corporation may still do the remedial work, but not charge the owner for its cost. For instance, to “require a person to pay the cost of remedying a contravention,” 19 a strata corporation must first give an owner the opportunity to answer the complaint, including a hearing, if requested.

Where a strata corporation’s bylaw required wall-to-wall carpeting to reduce noise, two owners breached the bylaw by installing laminate flooring in their strata lot. 20 The strata council denied the owners a hearing. When the strata corporation applied for an order to enforce the bylaw, the court held that the failure to provide a hearing contravened the pre-requisites in the Act. The strata corporation could remedy the owners’ bylaw contravention, but since the council denied the owners a hearing, the corporation could not require the owners to pay the costs of remedying that violation. In this context, the court interpreted the phrase to “pay the costs of remedying a contravention” to mean the corporation’s legal costs in the court enforcement proceedings. However, since the owners blatantly contravened the bylaw, the court held that the owners should bear the financial burden of replacing the hard flooring with carpeting. The court ordered the owners to comply with the bylaw by replacing the laminate flooring with carpeting at the owners’ expense. Since the strata corporation denied the owners a hearing, the court ordered the strata corporation to pay its own court costs.

Denial of Recreational Facilities

When a bylaw or rule violation relates to the use of a recreational facility, the Strata Property Act permits a strata corporation to deny an owner, tenant, occupant or visitor the use of that facility if it is part of the common property or a common asset. The strata corporation may deny access only for a reasonable length of time. 21

Tenants

The Strata Property Act contains some notable provisions for enforcing a bylaw or rule against the tenant of an owner.

Eviction

In the case of a residential strata lot, a strata corporation may evict an owner’s tenant if the tenant repeatedly contravenes a reasonable and significant bylaw or rule and seriously interferes with someone else’s use and enjoyment of a strata lot, the common property or a common asset. If these criteria are met, the strata corporation may give the tenant a notice under section 47 of the Residential Tenancy Act. 22 The strata corporation’s eviction does not affect any rights of the landlord 23 under the owner’s tenancy agreement with the tenant. 24

A strata corporation that wishes to use this provision to evict a tenant must be careful to use the mandatory forms and procedures under the Residential Tenancy Act, otherwise the eviction may be unenforceable. 25 Readers may find information about that Act’s forms and procedures at the website of the Residential Tenancy Branch at http://www.rto.gov.bc.ca/.

Vicarious Liability

An owner who leases a strata lot is vicariously liable for a fine or remedial costs incurred by the tenant. This means that although the strata corporation has fined a tenant, or required a tenant to pay the costs of remedying a breach of the bylaws or rules, the owner may be required to pay the amount owing. An owner cannot avoid vicarious liability, even where his or her powers and duties have been assigned to a tenant, for example in the case of a long-term tenant or a family member tenant. 26 The reader will find an explanation of the ways an owner may assign powers and duties to a tenant in Chapter 7, Strata Council.

If an owner, as landlord, pays a fine or costs levied against his or her tenant, the tenant is liable to reimburse the landlord for the amount paid. 27

No Lien for Unpaid Fine

Under the former Condominium Act, many strata corporations collected unpaid fines by registering liens against the strata lot titles of owners who failed to pay their fines, even though this practice was illegal. 28 Section 116(3) of the Strata Property Act expressly prohibits the registration of a lien for an unpaid fine.

Some strata corporations use the following technique to circumvent the restriction against liens for unpaid fines. Bearing in mind that a strata corporation may file a lien for unpaid strata fees, some strata corporations amend their bylaws to state that whenever an owner pays his or her strata fees, the payment is first applied to outstanding fines, then to strata fees.

Suppose, for example, that the monthly strata fees for an owner’s strata lot are $225 and the owner has an unpaid $100 fine. When the owner makes his or her next monthly payment of $225, the strata corporation allocates the first $100 of that payment towards the unpaid fine, and the remaining $150 towards strata fees. Of course, this leaves an unpaid balance of $100 in the payment of the owner’s monthly strata fees. Subject to certain procedural requirements for filing a lien, the strata corporation may now file a lien against the title to the owner’s strata lot for $100, representing arrears for strata fees.

Collecting A Fine and Costs for Remedial Work

Sue in Court

To recover an unpaid fine or costs for remedial work, a strata corporation may sue an owner or tenant in the Provincial Court of British Columbia: Small Claims Division, if the amount claimed is $25,000 or less, excluding interest and costs. 29 For larger claims, the strata corporation must sue in the Supreme Court of British Columbia. If the strata corporation succeeds in court, the corporation may register its judgment against the title to the owner’s strata lot. Depending on the circumstances, the strata corporation may also pursue other collection remedies to enforce its judgment, such as garnishment. For information about legal proceedings, see Chapter 27, Lawsuits and Chapter 28, Arbitration.

Before suing to collect money from an owner or tenant, sections 112 and 113 of the Strata Property Act set out some important prerequisites.

1. The strata corporation must give the owner or tenant 16 days advance written notice demanding payment. 30

2. The notice must indicate to the owner or tenant that the strata corporation may sue him or her if the strata corporation does not receive payment within the 16-day period. 31

3. If a mortgage lender has filed a Mortgagee’s Request for Notification (Form C) with the strata corporation, the corporation must give a copy of the notice to the lender. 32

4. The strata corporation must deliver the notice in accordance with the Strata Property Act. The requirements for delivering notice to an owner or tenant are described in Chapter 12, Meetings. 33 If a mortgage lender has filed a Mortgagee’s Request for Notification (Form C), the corporation must also deliver a copy of the notice to the mortgage lender by leaving it with the individual named, if any, in the Mortgagee’s Request for Notification (Form C) or by mailing it to the lender at the address given in the Request. 34

If there is a dispute whether an owner or tenant owes money to the strata corporation for a fine, and court proceedings have been started, the owner or tenant may pay the disputed amount into court, if the rules of court allow payment into court. Alternatively, the owner or tenant may pay the disputed amount to the strata corporation in trust, in which case the corporation must hold the money and any accrued interest in trust pending resolution of the dispute. 35 After the dispute is resolved, the strata corporation must pay the money out of trust to the party entitled to it and to the extent required by the court. 36

Arbitrate

Before arbitrating against an owner or tenant, the strata corporation must first comply with the same 16-day advance notice requirements required before suing, including, where necessary, giving a copy of the notice to a mortgage lender, all of which are described immediately above. In addition, the provisions permitting an owner or tenant to pay a disputed amount into court or trust apply equally to arbitrations. 37

The Strata Property Act contains a procedure for arbitrations. For information about the specific steps in arbitration, see Chapter 28, Arbitration.

Refusal to Provide a Certificate of Payment (Form F)

A strata corporation may withhold a Certificate of Payment (Form F) until an owner pays his or her fine, or otherwise makes satisfactory arrangements. 38

If an owner wishes to sell his or her strata lot, or to register a lease or an assignment of lease for the strata lot, the owner must, among other things, file a Certificate of Payment (Form F) at the Land Title Office. 39 The owner must obtain the Certificate of Payment (Form F) from the strata corporation or its strata manager, if it has one. The Certificate of Payment (Form F) states whether the owner owes money to the strata corporation and, if so, whether the money claimed by the strata corporation has been paid into court or trust, or whether the owner has otherwise made satisfactory arrangements to pay the money to the strata corporation. The certificate may include the strata corporation’s claim for unpaid fines. 40

The strata corporation does not have to deliver its Certificate of Payment (Form F) until the owner has paid all money owing to the strata corporation, or has paid any disputed amounts into court or trust, or the owner has otherwise made satisfactory arrangements with the strata corporation to pay the debt. If, for example, the owner needs a Certificate of Payment (Form F) to complete the sale of his or her strata lot to a buyer, the strata corporation may refuse to issue the certificate until the owner pays all sums owing to the strata corporation, including unpaid fines. In most cases, this is a compelling incentive for the owner to pay his or her fines.

If, however, a strata lot is being sold by court order, a strata corporation cannot withhold a Certificate of Payment (Form F) to collect money owing to the corporation. A Certificate of Payment (Form F) is not necessary where there is a court order to change the ownership of a strata lot. For example, in foreclosure proceedings, a Certificate of Payment (Form F) is not required to register a change in ownership at the Land Title Office where a lender obtains a court order to sell a borrower’s strata lot. 41 While normally a strata corporation may withhold delivery of a Certificate of Payment (Form F) to collect money owing to the corporation, the corporation has no such leverage where the strata lot is being sold under court order.

Supreme Court’s Authority to Relieve Fines

The Law and Equity Act permits a justice of the Supreme Court of British Columbia to relieve an owner or tenant from paying some or all of a fine. 42

Section 24 of the Law and Equity Act says:

In general, the court is more likely to reduce or cancel a fine under this section where the strata corporation could have taken steps sooner to enforce its bylaw or rule, rather than allowing the size of the fine to grow unreasonably large over time. Lau v. Strata Corporation No. LMS 463 is a good example. 43

Case Study

Lau and her associates offered to buy a commercial strata lot in a shopping mall. One of the unit’s walls was an exterior wall. Persons entering the strata lot gained access only through the mall, whose business hours ended at 9 pm.

After the purchase, Lau and her associates planned to lease the unit to a holding company to operate a video arcade.

Since the holding company wished to operate the arcade beyond normal mall hours, the seller, on behalf of the buyers, asked the strata corporation for permission to install a door in the exterior wall. The strata corporation agreed to permit the exterior door on the condition, among other things, that the new owners install wash-rooms in the strata lot for the use of the arcade’s clientele. The strata corporation required washrooms in the unit because the mall’s washrooms would not be available to the arcade’s customers after 9 pm.

In June 1994, the new owners installed the exterior door shortly after purchasing the strata lot. However, they did not install washrooms inside their unit.

When the strata corporation found out, it decided to impose fines. In September 1994, the strata corporation wrote a letter to the holding company setting out the fines. Under the strata corporation’s bylaws, the corporation could impose an initial fine of $50 followed by a maximum fine of $150 for each further occurrence of the bylaw violation.

Upon receipt of the September letter, the holding company immediately blocked off the door and stopped using it. In March 1995, approximately six months later, the holding company removed the door and restored the exterior wall. By that time, the accumulated fines amounted to $28,754, made up largely of fines at the rate of $150 per day for the continuing infraction.

Lau and her associates sued the strata corporation for an order cancelling the fines, among other things.

The court held that the strata corporation was entitled in this case to impose fines for breach of the strata corporation’s bylaws. However, the court found the total amount of the fines unreasonable. After receipt of the strata corporation’s September letter, the holding company blocked the door. Rather than allow extensive fines to accumulate, the strata corporation had the authority to remove the door and restore the exterior wall. The strata corporation could have charged back the restoration expense against the new owners and registered a Certificate of Default under the former Condominium Act against their title. Instead, the strata corporation allowed excessive fines to accumulate. In these circumstances, the court applied the provisions of the Law and Equity Act to reduce the total amount of the fines to $2,500.

In Strata Plan NW 391 v. Forsberg, a strata corporation fined an owner $43,500 for the continuing breach of a rental restriction bylaw. 44 After the strata corporation began imposing fines, the owner asked for a hearing, apparently to request permission to rent so as to bring the fines an end. The strata corporation delayed holding the hearing for approximately three months. In the circumstances, the Supreme Court of British Columbia held the delay unreasonable. The court found that the delay justified relief under section 24 of the Law and Equity Act. The court reduced the fine from $43,500 to $38,000.


 

Notes:

  1. Strata Property Act, s. 26.
  2. Strata Property Act, s. 135(1)(d). The Owners, Strata Plan VR 19 v. Collins et al., 2004 BCSC 1743.
  3. Strata Property Act, s. 129(2).
  4. Strata Property Act, s. 135.
  5. Strata Property Act, ss. 60-64.
  6. Strata Property Act, s. 135. Strata Property Regulation, s. 7.2. Dimitrov v. Summit Square Strata Corporation, 2006 BCSC 967.
  7. Strata Property Act, s. 136(1), (2).
  8. Strata Property Act, ss. 61(1), 135(2).
  9. The Owners, Strata Plan VR 19 v. Collins et al., 2004 BCSC 1743.
  10. Dimitrov v. Summit Square Strata Corporation, 2006 BCSC 967 at para 33.
  11. Strata Property Act, ss. 130, 132(1).
  12. Strata Property Act, Schedule of Standard Bylaws, s. 23.
  13. Strata Property Act, Schedule of Standard Bylaws, s. 24.
  14. Strata Property Act, s. 132; Strata Property Regulation, s. 7.1.
  15. Law and Equity Act, R.S.B.C. 1996, c. 253, s. 24.
  16. Drummond v. Strata Plan NW 2654, 2004 BCSC 1405.
  17. Strata Property Act, Schedule of Standard Bylaws, ss. 23, 24.
  18. Strata Property Act, s. 133.
  19. Strata Property Act, s. 135(1)(b).
  20. The Owners, Strata Plan VR 19 v. Collins et al., 2004 BCSC 1743.
  21. Strata Property Act, s. 134.
  22. Residential Tenancy Act, S.B.C. 2002, c. 78.
  23. The Strata Property Act, s. 1(1) defines the term, “landlord” to mean an owner who rents a strata lot to a tenant and a tenant who rents a strata lot to a subtenant, but does not include a leasehold landlord in a leasehold strata plan as defined in section 199 of the Act.
  24. Strata Property Act, s. 138.
  25. See generally Sullivan v. Strata Plan BCS-251, 2005 BCCA 342, reasons refusing a stay of proceedings pending a later appeal 2005 BCCA 630.
  26. Strata Property Act, ss. 131(1), 147 and 148.
  27. Strata Property Act, s. 131(2).
  28. The Condominium Act, s. 37(2) permitted a strata corporation to file a lien if an owner defaulted in the payment of his or her share of the common expenses. A lien for an unpaid fine is not a common expense of the strata corporation.
  29. Small Claims Act, R.S.B.C. 1996, c. 430, s. 3, Small Claims Court Monetary Limit Regulation, B.C. Reg. 179/2005.
  30. Section 112(1) of the Strata Property Act requires the strata corporation to give the owner or tenant, “at least 2 weeks’ written notice demanding payment.” According to section 25(4) of the Interpretation Act, R.S.B.C. 1996, c. 238 we must calculate this two-week period by excluding the first day and the last day, which translates into sixteen days.
  31. Section 112(1) of the Strata Property Act says the strata corporation’s notice must indicate that, “action may be taken if payment is not made within that 2 week period”, referring to the sixteen day time frame for demanding payment.
  32. Strata Property Act, ss. 60, 112 and 113(b) and Strata Property Regulation, s. 4.5.
  33. Strata Property Act, s. 61.
  34. Strata Property Act, ss. 60, 61(1) and Strata Property Regulation, s. 4.5 and Mortgagee’s Request for Notification (Form C).
  35. Strata Property Act, s. 114.
  36. Strata Property Act, s. 114. For information about a Certificate of Payment (Form F), see Chapter 13, Record Keeping.
  37. Strata Property Act, ss. 112, 114.
  38. For information about a Certificate of Payment (Form F), see Chapter 13, Record Keeping. Form found in Strata Property Regulation, Form F.
  39. Strata Property Act, s. 256.
  40. Strata Property Act, s. 115(4).
  41. Peoples Trust v. Meadowlark Estates et al., 2005 BCSC 51, aff’g 2003 BCSC 1321.
  42. Law and Equity Act, s. 24.
  43. Lau v. Strata Corporation No. LMS 463, 1996 CanLII 8630, [1996] B.C.J. No. 1728 (QL)(S.C.).
  44. Strata Plan NW 391 v. Forsberg, 2010 BCSC 1301.