It will come as no surprise to strata property managers that life in a strata corporation means living under certain laws of the land. The Strata Property Act, S.B.C. 1998, c. 43 (SPA) is the main law governing strata corporations in British Columbia. The SPA works in conjunction with a strata corporation’s bylaws and rules, as well as several other provincial and municipal laws regulating how persons can use and enjoy their strata properties.
In strata corporation territory, it is the strata council (the community’s “County Sheriff”), who is first tasked with enforcing these laws. Strata property managers are frequently asked to assist councils with its bylaw enforcement duties. However, section 26 of the SPA makes it clear that bylaw enforcement decisions fall squarely on the sherriff’s/council’s shoulders. With these duties in mind, it is important for strata councils to familiarize themselves with the laws of their land.
THIS LAND IS MY LAND
By default, all strata corporations in British Columbia come with the schedule of standard bylaws prescribed by the SPA. However, strata corporations are free to pass their own bylaws and register them with the Land Title Office. Provided that a bylaw does not contravene the SPA or other legislation rendering it unenforceable, the laws of the land can be limitless from pet restrictions to smoking bans, parking protocol to garden gnome prohibitions. Although the SPA is silent on such hard-hitting bylaws as garden gnome prohibitions, it is quite strict when it comes to conducting bylaw enforcement proceedings.
PROCEED WITH CAUTION
Investigating a reported bylaw infraction takes time and demands a certain standard of care.
Section 31 of the SPA requires council members to (a) act honestly and in good faith with a view to the best interests of the strata corporation, and (b) exercise the care, diligence and skill of a reasonably prudent person in comparable circumstances. Any council member with a stake in the game (i.e. those who reported the bylaw infraction, or those who were reported on) must declare their interest and abstain from the council’s bylaw enforcement investigation, deliberation and ultimate decision (section 32, SPA). A conflicted council member’s failure to abstain from the bylaw enforcement process not only compromises the council’s deliberations, but also risks the enforceability of its bylaw enforcement decision.
JUST THE FACTS, MA’AM
When processing a bylaw complaint, the council must collect as much information as possible. The council must also give written notice of the alleged infraction to the owner and/or tenant (as applicable), full written particulars of the complaint and an opportunity to respond in writing and/or at a council hearing. Unfortunately, the SPA offers councils very little guidance on what content to include in these notices. Ideally, the notice should describe the nature of the bylaw infraction, the details of the alleged violation (i.e. the what, the when, and the where) as well as the specific bylaw in question. There is no obligation under the SPA to disclose the origin of a bylaw complaint. Indeed, British Columbia’s privacy laws can shield the complainer’s identity in certain circumstances (e.g. for safety or security reasons). To keep the bylaw enforcement process moving, it is beneficial to impose a response deadline for the owner and/or tenant.
CAN YOU HEAR ME NOW?
If the owner/tenant requests a council hearing, council should hold the hearing at the next scheduled council meeting or minimally within four weeks of the request. Council should afford the owner and/or tenant sufficient time to make their case and answer any questions council may have. Although council should avail itself of any questions, it should take special care not to convey a decision until all of the evidence has been collected and considered. Since some disputes can be overrun with emotions (garden gnomes aside), the council should consider holding the hearing on neutral ground. The council is also obligated to protect the parties’ privacy such as no observers are permitted to attend the hearing.
Once the council has received/heard the evidence, it must issue a written decision “as soon as feasible” and, in any event, within one week of the hearing. Bylaw enforcement decisions are principally governed by sections 129 -138 of the SPA. Section 129 of the SPA authorizes councils to impose a fine up to the maximum amount permitted by the regulations and the bylaws, remedy the contravention, or in certain circumstances, deny access to a recreational facility. The council can also decide to issue a warning or give the purported offender time to comply with the bylaw or rule before proceeding with the enforcement process.
JUST PRESS P.A.U.S.E.
In light of these statutory requirements and procedures, it is no wonder that bylaw enforcement can be a challenge. To simplify matters, council need only remember to P.A.U.S.E:
P: give the owner written particulars of the complaint. If the complaint is made against a tenant, notice must also be given to the owner /landlord.
A: give the owner/tenant a reasonable opportunity to answer the complaint, including a hearing if requested or by written submissions.
U: remain unbiased throughout the investigation. Keep an open mind before deciding whether a bylaw or rule has been contravened.
S: give the owner/tenant council’s written decision as soon as feasible and in any event, within one week of a hearing.
E: enforce the bylaw or rule.
Lisa N. Mackie is a partner at Alexander Holburn Beaudin + Lang LLP. Need help with bylaw enforcement proceedings? Feel free to contact her at: [email protected]