Voting

The Strata Property Act allocates votes by strata lot and regulates who is eligible to exercise a strata lot’s vote. The Act also requires several types of vote and stipulates how to calculate voting results.

 

Votes Per Strata Lot

The general rule is that each strata lot has one vote unless voting rights are otherwise set out in a Schedule of Voting Rights with the strata plan. 1

Residential Strata Lot

A residential strata lot has only one vote, except in the rare circumstances described immediately below.

The general rule is that if a strata plan is exclusively residential, each strata lot has one vote. 2 Likewise, in a strata plan containing both residential and non-residential strata lots, the general rule is that each residential strata lot has only one vote. 3

The Strata Property Act, however, recognizes an exception. In the relatively rare circumstances where a strata plan is amended to:

  • Divide two or more strata lots;
  • Consolidate two or more strata lots; or
  • To add part of a strata lot to another strata lot,

the amendment may result in a residential strata lot having more or less than one vote. If so, a Schedule of Voting Rights must be established for that residential strata lot. In that case, the residential strata lot will have the number of votes shown for that strata lot on its Schedule of Voting Rights. 4 The prescribed form for a Schedule of Voting Rights is Form W, which is found among the forms in the regulations.

Non-Residential Strata Lot

A non-residential strata lot may have more or less than one vote if a Schedule of Voting Rights provides for it. 5 A Schedule of Voting Rights must be deposited in the Land Title Office with the strata plan to give more or less than one vote to a non-residential strata lot.

Whether a non-residential strata lot is found in a mixed strata plan that includes both residential and non-residential strata lots, or the strata plan consists entirely of non-residential strata lots, the Strata Property Act provides the following formulas for determining the number of votes for each non-residential strata lot. 6

If a strata plan is composed of both residential and non-residential strata lots, then the number of votes for each non-residential strata lot must be calculated as follows:

formula_spa_247(2)a.png

In this formula, the average unit entitlement of residential strata lots equals the total unit entitlement of all residential strata lots divided by the total number of residential strata lots.

On the other hand, if a strata plan is composed entirely of non-residential strata lots, the number of votes for each strata lot must be calculated as follows:

formula_spa_247(2)b.png

Eligible Voters

While the right to vote begins with the owners, the Strata Property Act uses the term eligible voters to better describe those who may exercise voting rights in a general meeting. 7 This chapter explains how someone other than an owner may exercise the vote of a strata lot. For example, an owner may assign the owner’s voting rights to a tenant or a mortgagee. If certain criteria are met, a parent, guardian or legal representative may exercise the vote of a person who may vote. In certain cases, the court may appoint someone else to vote. An eligible voter may also appoint a proxy.

An Owner May Vote

To vote at a general meeting, one must be the owner of a strata lot, unless the owner has otherwise assigned the right to vote to a tenant or mortgagee. If two or more persons share one vote with respect to a strata lot, only one of them may vote on a given matter. If two or more people who share one vote cannot agree on how to vote, then the chairperson must not count their vote in respect of that matter. 8

Owner in Arrears

A strata corporation may pass a bylaw prohibiting an eligible voter from exercising his or her right to vote in respect of a strata lot, except in matters requiring a unanimous vote, if the strata corporation is entitled to register a lien against that strata lot for arrears. In that case, the person’s vote must not be counted for the purposes of determining a quorum. 9

This means that a bylaw, for example, may prohibit an owner from voting, except in matters requiring a unanimous vote, if the owner is in arrears for any of the following matters, being those for which the strata corporation is entitled to file a lien: 10

  • strata fees,
  • special levies,
  • a reimbursement for the cost of work carried out by the strata corporation because the owner failed to carry out a work order, or
  • the strata lot’s share of a judgment against the strata corporation.

Note that a bylaw cannot prohibit an owner from voting on the grounds that he or she owes money to the strata corporation for a fine, or for money representing the strata corporation’s costs to remedy a contravention of the bylaws or rules. Section 116(3) of the Strata Property Act prohibits filing a lien for either of these matters. In addition, a strata corporation must first comply with various requirements before it is entitled to file a lien under the Act. The strata corporation cannot enforce a bylaw that prohibits voting because of arrears until the corporation has complied with all of the prerequisites for filing a lien. For information about the requirements for filing a lien, see Chapter 15, Finances.

Certain Tenants May Vote

There are three ways that a tenant may acquire an assignment of an owner’s right to vote. First, a tenant who leases a residential strata lot from the owner under a lease for a set term of three years or more is automatically assigned the powers and duties of his or her landlord, including the right to vote. The residential tenant must notify the strata corporation, in writing, of this assignment before the tenant can exercise the landlord’s power. 11

Second, if an owner rents his or her residential strata lot to a family member, within the meaning of that term in the regulations, the Strata Property Act automatically assigns the owner’s powers and duties to the tenant. 12 The residential tenant must notify the strata corporation, in writing, of this assignment before the tenant can exercise the landlord’s powers. 13 See Chapter 7, Strata Council for more information about the automatic assignment of an owner’s powers and duties to a family-member tenant.

Third, an owner, in his or her capacity as a landlord, may assign some or all of the owner’s powers and duties to a tenant whose lease is for a term less than three years. The assignment is not effective until the owner, as landlord, gives the strata corporation a written notice setting out the particulars of the assignment, including the powers and duties that have been assigned. This feature is available to owners of residential and non-residential strata lots. 14

A Mortgagee May Vote

In limited circumstances, a lender with a mortgage (called a “mortgagee”) over a strata lot may vote in place of the owner. The mortgage document must give the lender the right to vote. The lender must also give the strata corporation at least three days’ written notice of his or her intention to vote. The lender can vote only in respect of insurance, maintenance, finance or other matters affecting the security of the mortgage. 15

Guardian May Vote

If a person who is entitled to vote is under 16 years old, he or she may exercise voting rights only through a parent or guardian. 16

Voter Lacks Legal Capacity

If an eligible voter who is an owner, a tenant or mortgagee lacks legal capacity for a reason other than being under 16 years old, his or her right to vote may be exercised only by someone who is legally authorized to act for that person with respect to the strata lot. In simple terms, a person has legal capacity if he or she is 19 years or older, sane and sober. 17 Legal authorization to act on behalf of someone without legal capacity usually takes the form of a court order, a power of attorney or, more recently, a representation agreement. 18

Court Appointed Voter

In some circumstances the Supreme Court may appoint someone to vote in respect of a strata lot; for example, if there would otherwise be no one to exercise that vote. 19 In October 2009 the province passed amendments 20 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, they will also permit the Provincial Court of British Columbia: Small Claims Division (often called “Small Claims court”) to appoint a person to vote in respect of a strata lot. A regulation is necessary to bring these amendments into force. 21

Proxies

An eligible voter may vote in person or by proxy.

In day-to-day parlance, the term proxy may mean similar but different things, depending on the context. A proxy may be the written document which authorizes a person to represent someone else in a vote. A proxy is also a person authorized to exercise someone else’s vote.

Subject to the regulations, any person can be a proxy for an eligible voter. For instance, the regulations may prohibit a strata property manager or a strata corporation’s employee from acting as a proxy, as described below. A proxy must be in writing, signed by the eligible voter giving it, and may be revoked at any time. 22

A proxy stands in the place of the eligible voter appointing the proxy and, with some exceptions, can do anything that person may do, including vote, propose and second motions and participate in the discussion, unless otherwise limited in the appointment document. 23

All proxies are not equal. A proxy may be general, or for a specific meeting, or for a specific resolution. 24

The regulations contain a suggested form of Proxy Appointment (Form A). This is an optional form that a strata corporation may adopt for proxies.

In a strata corporation, the right to vote is of paramount importance. To ensure that an absent owner may vote, the Strata Property Act provides for unlimited proxies. 25

Property Managers and Strata Employees

The Strata Property Act restricts some persons from serving as a proxy. Except as permitted by the regulations, the following persons may not serve as a proxy:

  • a person who provides strata management services to the strata corporation, or
  • an employee of the strata corporation.

At the time of this writing, the regulations do not permit the strata corporation’s strata manager or its employee to hold a proxy. Until the province changes the regulations, neither a property manager serving a strata corporation nor the corporation’s employee may serve as proxies at a general meeting of the corporation.

Recall that when a strata corporation contracts for management services with a licensee, it contracts with a brokerage qualified to provide strata management services. 26 When a brokerage represents a strata corporation, then in law every person licensed with that brokerage represents the strata corporation. If a brokerage acts as a strata corporation’s strata property manager, the prohibition against serving as a proxy likely extends to every licensee attached to that brokerage, not just the particular licensee who handles the strata corporation’s day-to-day affairs.

Tie Vote

Except where there are only two strata lots in the strata plan, the Standard Bylaws permit the president or vice-president, as the case may be, to cast a tie breaking vote. If the president is absent or unable or unwilling to vote, then the vice president may cast the second, tie-breaking vote. 27

Passing Resolutions

Most decisions at a general meeting require a majority vote, a 3/4 vote, or a unanimous vote, depending on the circumstances. In rare instances, a strata corporation’s bylaws may permit a different voting threshold for non-residential strata lots in certain situations. Appendix B contains tables that list the various matters for which the Strata Property Act, the regulations, and in some cases the Standard Bylaws, require particular voting thresholds. The appendices list items by subject matter and type of vote respectively.

[NEW] In November 2015 the province passed amendments 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, they will add a new voting feature to the legislation – the 80% vote, being a vote by at least 80% of all the eligible voters. If brought into force, an 80% vote will be necessary to cancel a strata plan and wind up its strata corporation. 28 A regulation is required to bring these amendments into force. 29

Majority Vote

Matters at general meetings are decided by majority vote unless the Strata Property Act, the regulations, or the bylaws require, or permit, a different voting threshold. 30 In other words, the majority vote is the default vote required in all situations, except where otherwise required by the Act, the regulations, or the bylaws.

The Act defines the term majority vote as a vote in favour of a resolution by more than one-half of the votes cast by eligible voters who are present in person or by proxy at the time the vote is taken and who have not abstained from voting. 31 The inclusion of the phrase “at the time the vote is taken” is critical. Suppose, for example, that at 7 pm when the general meeting starts there are 80 eligible voters present, in person or by proxy. By the time the vote is taken at 10 pm, half of the eligible votes have left the meeting. How many votes are necessary to pass a majority vote? Half plus one of the 80 votes present when the meeting began, or half plus one of the 40 votes present at the time the vote is taken? In this example, the Strata Property Act dictates that 21 votes are needed, being a majority of the 40 votes present at the time the vote is taken.

In the definition of majority vote, the phrase “and who have not abstained” is also important. When counting votes, this means where one or more eligible voters abstain from a vote, the number of abstentions must be subtracted from the number of otherwise eligible votes present, either in person or by proxy. For instance, suppose the strata corporation consists entirely of residential units. Each strata lot has one vote. The table below calculates the number of votes necessary to pass a resolution by majority vote if 80 eligible votes are present, with and without abstentions.

Calculating a Majority Vote, With and Without Abstentions

Eligible votes present in person or by proxy for the vote

80

80

Abstentions

0

10

Net eligible votes

80

70

Votes necessary for majority vote

41

36

Note how the presence of ten abstentions reduces the threshold for majority approval from 41 to 36 votes.

Reconsidering a Majority Vote

The Strata Property Act does not contain any procedure for reconsidering a majority vote. To the extent that meeting procedures are not covered by the Strata Property Act, a strata corporation may adopt its own procedures, so long as those procedures are fair and reasonable. For example, in one case a strata corporation used the procedure in Robert’s Rules of Order to reconsider a failed 3/4 resolution for a special levy. 32 So, whether a majority resolution is successful or not, it appears the strata corporation may reconsider that resolution if the procedure used to reconsider it is fair and reasonable. 33

Three-Quarter Vote

The Strata Property Act defines the term 3/4 vote as one in favour of a resolution by at least 3/4 of the votes cast by eligible voters who are present in person or by proxy at the time the vote is taken and who have not abstained from voting. 34 Once again, the inclusion of the phrase “at the time the vote is taken” is important. The time at which to tabulate the votes is the time the vote is taken. Similarly, the phrase “and who have not abstained from voting” is also significant. This means that the number of abstentions must be subtracted from the number of eligible votes present, whether in person or by proxy. For example, suppose again that a strata corporation consists entirely of residential units. Each strata lot has one vote. The table below calculates the number of votes necessary to pass a resolution by a 3/4 vote if 80 eligible votes are present, with and without abstentions.

Calculating a Three-Quarter Vote, With and Without Abstentions

Eligible votes present in person or by proxy for the vote

80

80

Abstentions

0

10

Net eligible votes

80

70

Votes necessary for 3/4 vote

60

53

In this example, note again how the presence of ten abstentions reduces the threshold for passage of a 3/4 vote from 60 to 53 votes.

Reconsideration of a Three-Quarter Resolution

Whether a 3/4 resolution passes or fails, it appears the eligible voters may reconsider the resolution.

Reconsidering a Successful Three-Quarter Resolution

The Strata Property Act provides that, in some circumstances, the strata corporation must wait eight days before implementing a successful 3/4 resolution. 35

The strata corporation must wait eight days if the persons who passed the 3/4 resolution at a general meeting hold less than 50 per cent (50%) of the strata corporation’s votes. 36

For instance, suppose a residential strata complex contains one hundred units. Although each strata lot has one vote, in this example only 64 eligible votes are present in person or by proxy. Forty-nine votes are cast in favour of the resolution, which passes. The following table calculates whether the strata corporation must wait eight days before putting the resolution into effect. In this case, the strata corporation must wait eight days because persons holding less than 50 per cent (50%) of the strata corporation’s votes passed the resolution requiring a 3/4 vote.

Calculating Votes Necessary to Force Reconsideration of a 3/4 Resolution

All of the strata corporation’s votes

100

50% of the strata corporation’s votes

50

Votes present in person or by proxy

64

Votes in favour of resolution

49

Did the 3/4 vote pass? 49/64 = 77%

Yes

Did persons voting in favour hold less than 50%of strata corporation’s votes? 49 votes< 50 votes

Yes–Wait Eight Days

During the eight-day waiting period, persons holding at least 25 per cent (25%) of the strata corporation’s votes may, by written demand, require the strata corporation to hold a special meeting to reconsider the resolution. The demand must be signed by each person making it. 37

The strata corporation may refrain from waiting and act immediately only where it is reasonably necessary to ensure safety or prevent significant loss or damage. 38

Reconsidering a Failed Three-Quarter Resolution

The Strata Property Act contains a procedure for reconsidering a successful 3/4 vote, as explained above, but it does not say anything about reconsidering an unsuccessful 3/4 vote. A strata corporation may reconsider a failed 3/4 resolution, so long as the procedure used is fair and reasonable.

In Strata Plan NW971 v. Daniels, eligible voters at a general meeting defeated a 3/4 resolution to approve a special levy. 39 Relying on Robert’s Rules of Order, the strata corporation adjourned the meeting to reconsider the same resolution again at another general meeting a week later. At the adjourned meeting, the eligible voters reconsidered the matter and passed the resolution. Later, when the strata corporation took proceedings to collect an owner’s debt to the corporation, including the unpaid special levy, the owner claimed the special levy resolution was passed improperly. The owner asserted that the Strata Property Act is a complete code. According to the owner, a strata corporation may not reconsider an unsuccessful resolution because the Act does not provide any procedure for it. The court disagreed. To the extent that meeting procedures are not covered by the Strata Property Act, a strata corporation may adopt its own procedures, so long as those procedures are fair and reasonable. In this case, the procedure used was fair and reasonable and the reconsidered vote was valid.

Unanimous Vote

The Strata Property Act defines the term unanimous vote as a vote in favour of a resolution by all the votes of all the eligible voters. 40 This definition effectively requires every eligible vote, not just those who are present at the time of the vote.

The definition of unanimous vote does not appear to permit abstentions. In addition, the absence of wording similar to that used in the definitions of majority vote and 3/4 vote, respectively, suggests abstentions are not subtracted from the number of eligible voters in unanimous votes. Otherwise, the legislature would have used the same wording as in the other definitions. If abstentions are not subtracted, then each strata lot, in effect, has a veto. This means that if even one eligible voter abstains from voting, the result cannot be unanimous.

Judicial Passage of a Failed Unanimous Resolution

If a strata corporation meets certain criteria, the Act provides that where a resolution requiring a unanimous vote fails for lack of a few votes, the strata corporation can, with the support of a 3/4 vote, apply to the Supreme Court of British Columbia for an order judicially passing the failed resolution. This option is available only if the corporation meets the following conditions. 41

First, the strata corporation must have ten or more strata lots.

Second, the unanimous resolution must be supported by all of the strata corporation’s votes except:

  • the vote in respect of one strata lot, in a strata corporation with at least ten strata lots, or
  • the votes of more than one strata lot if those votes, when taken together, represent less than five per cent (5%) of the strata corporation’s votes.

For example, suppose again that a residential strata complex contains 100 units. Suppose also that the members wish to vote on a unanimous resolution. If the unanimous vote fails, the following table shows how many positive votes are necessary to permit the strata corporation to apply for judicial passage of the motion.

Calculating Votes Needed to Seek Judicial Passage of a Nearly Unanimous Vote

All of the strata corporation’s votes

100

Votes necessary to pass a unanimous resolution at a general meeting

100

Votes that represent less than 5% of the strata corporation’s votes (using whole numbers) 5% of 100 votes = 5
Next lowest whole number = 4

4

The minimum number of positive votes necessary, by persons present in person or by proxy, who support the resolution, so that if it fails, they can apply for judicial passage: 100 – 4 = 96

96

In this example, the strata corporation needs at least 96 votes in favour of the failed unanimous motion to permit the strata corporation to apply for judicial passage. So, if there are fewer than 96 votes, in person or by proxy, the unanimous vote will fail and the strata corporation will not be able to ask the court to approve the motion instead.

On the other hand, suppose there are 98 votes present in person or by proxy, out of which 96 are in favour, and two are against the motion.

The following table calculates whether the strata corporation may apply to the court to pass the failed unanimous resolution.

Example Showing When a Strata Corporation Could Seek Judicial Passage of a Nearly Unanimous Vote

Votes necessary to pass a unanimous resolution at a general meeting

100

Maximum votes that represent less than 5% of the strata corporation’s votes (using whole numbers)

4

Votes present or by proxy

98

Votes in favour of resolution

96

Unanimous vote passed?

No

Did the vote fail by less than 5% of the strata corporation’s votes? 100 – 96 = 4 4 votes < 5% of the strata corporation’s vote

Yes

In this case, the strata corporation could, with the support of the appropriate resolution, proceed to the Supreme Court of British Columbia. Recognizing that litigation is expensive, the Strata Property Act requires the eligible voters to pass a 3/4 vote authorizing the strata corporation to apply to court for approval of the matter which required a unanimous vote.

When a strata corporation seeks judicial approval of a failed unanimous resolution, the court may order that the resolution proceed as if the dissenting voter or voters had no vote, if the court is satisfied that passage of the resolution is in the best interest of the strata corporation and would not unfairly prejudice the dissenting voters. In making such an order, the court may include any other order it considers just, including an order that the strata corporation offer to purchase, at fair market value, the strata lot owned by a dissenting voter, or that the strata corporation compensate that person by some other means. 42

In October 2009 the province passed amendments 43 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, they will permit a strata corporation to apply to either the Supreme Court of British Columbia or to the Provincial Court of British Columbia: Small Claims Division (often called “Small Claims court”) for judicial approva