Bylaw Amendment Basics: Fixing Bylaws
A Strata Corporation’s set of Bylaws is a living document which must be periodically revised to account for changes to the legal landscape and the changing needs of the Strata Corporation itself.
Some bylaws which were acceptable 5 years ago are no longer valid or enforceable because of changes to the Strata Property Act or decisions of the BC Supreme Court. We even see Strata Corporations which are either ignoring their own bylaws, or don’t realize which set of bylaws was most recently registered.
Section 119 of the Strata Property Act permits a Strata Corporation to enact bylaws which govern the control, maintenance, use and enjoyment of strata lots, the common property, as well as setting out how the Strata Corporation will govern itself, among other things.
Section 119 is subject to section 121 of the Strata Property Act which requires that enforceable bylaws must not contravene any other provision of the Strata Property Act, or any other enactment or law, or improperly restrict the owner’s right to freely sell, lease or mortgage any interest in the strata lot.
Section 128 of the Strata Property Act sets out how bylaws are approved and come into force. In summary, a typical process is as follows:
1. The Strata Council prepares or engages a lawyer to prepare proposed additions, amendments or replacements to some or all of the bylaws.
2. The Notice Package for an Annual or Special General Meeting is prepared with a properly worded ¾ vote bylaw amendment resolution on the agenda. The resolution and full text of the proposed bylaws must be properly distributed in the notice package at least 20 days in advance of the meeting.
3. At the meeting, the owners have the opportunity to discuss and vote on the bylaws. Amendments are possible in accordance with the procedure proscribed in the Strata Property Act, but the amended bylaws normally cannot be approved until a subsequent meeting with fresh notice including the amended bylaws.
4. Once approved, the bylaws have to be properly registered in the Land Title Office by a lawyer or notary before they take effect. However simple that process may seem, there are unusual circumstances which modify those requirements. As examples:
• If the bylaws or any other ¾ vote resolution are approved at a meeting attended by persons holding less than 50% of the eligible votes, the bylaws must not be registered for at least 7 days to account for the challenge provisions in section 51 of the Strata Property Act.
• Strata Corporations with formally designated residential and non-residential strata lots require a ¾ vote resolution approved by each of those categories of strata lot owners.
• Bylaw amendments prior to the Strata Corporation’s second Annual General Meeting require approval by unanimous vote resolution pursuant to section 127 of the Strata Property Act.
• There are restrictions on changing certain bylaws if the Strata Corporation has multiple phases, some of which haven’t yet been completed or fully amalgamated.
Even if your Strata Corporation follows the procedures correctly, having the right bylaws is just as important as correctly approving and registering them.
1. The bylaws must not contradict the Strata Property Act, Regulations, BC Human Rights Code, or any other enactment or law.
2. The text of the bylaw must be distributed with notice of a duly called general meeting 20 days or more in advance of an Annual or Special General Meeting.
3. The bylaw approval resolution must be approved by the owners by the proper vote threshold (for residential strata corporations without sections, ¾ of persons voting in person or by proxy), and quorum must be satisfied for the meeting.
4. The bylaws must be properly registered in the Land Title Office.
5. The bylaws must clearly and unambiguously prohibit or regulate conduct within the proper jurisdiction of the Strata Corporation.
The cost of getting professionally drafted bylaws isn’t as high as you might think. However, there are self-help resources which will help a strata council reduce legal expenses, be sure to have your bylaws reviewed by an experienced lawyer before the bylaws are approved and registered.
Fischer and Company provides no-obligation estimates on bylaw review projects, and the estimates include a more detailed outline of the process. For more information on reviewing, interpreting, drafting or approving bylaws, please feel free to contact our office. Gain the benefit of our extensive experience and creativity.
