The Courts have been progressively less patient with imperfect bylaw enforcement procedures by Strata Councils. Unfair, unlawful or inconsistent bylaw enforcement are frequent causes of costly litigation. Make sure that your strata corporation is staying clear of trouble by keeping bylaw enforcement fair, consistent, procedurally compliant and effective.
It is a stated duty of the Strata Corporation to enforce the bylaws fairly and evenly, honestly, and in good faith with a view to the best interests of the strata corporation pursuant to sections 4, 26 and 31 of the Strata Property Act.
The mandatory procedure is clearly set out in Section 135 of the Strata Property Act. The Strata Council should have a copy of the Strata Property Act at hand, and should review section 135 carefully when enforcing the bylaws.
It is a stated duty of the Strata Corporation to enforce the bylaws fairly and evenly, honestly, and in good faith with a view to the best interests of the strata corporation pursuant to sections 4, 26 and 31 of the Strata Property Act.
The mandatory procedure is clearly set out in Section 135 of the Strata Property Act. The Strata Council should have a copy of the Strata Property Act at hand, and should review section 135 carefully when enforcing the bylaws. In summary, the procedure is as follows:
A mandatory first step is for council to receive a complaint that a bylaw has been breached.
- The complaint can be received from anyone, including a council member, strata manager, tenant, or even a government official.
- It is preferable that the complaint be received or confirmed in writing as it will be easier to document that the complaint has been legally “received” by the Strata Corporation.
Once a complaint has been received, Council makes a decision whether to send out a written Notice of Bylaw Complaint to the owner or tenant alleged to have breached the bylaws.
- The notice must include reasonable particulars of the complaint.
- The notice must also provide the owner or tenant with a reasonable opportunity to respond in writing and by offering an in-person hearing before council. Two to three weeks is usually sufficient time to respond, but reasonable extensions should be provided if requested.
- Council must be confident that the bylaw being enforced is valid and enforceable before sending out a Notice of Bylaw Complaint – see our Bylaw Amendment Basics for basic considerations.
- If the allegation involves a tenant, the strata lot owner should be copied on all correspondence relating to the bylaw enforcement.
Once a response has been received or time to respond has expired, or following the hearing (if requested), a council meeting is convened to consider the allegations, the submissions in response (if any) and make a determination on the alleged bylaw breach.
- At the council meeting, council goes ‘in-camera’ to determine the bylaw issue. Normally only council members, the strata manager and/or Strata Corporation’s lawyer should be present.
Council must make determinations by majority vote:
Whether the evidence shows that one or more bylaws were breached as alleged in the complaint on a balancing of probabilities; and
- If so, council must determine the penalty to be imposed for each contravention.
Penalties typically include:
- A warning, a direction to correct the breach, and/or time to comply with the bylaw;
- A single fine (not to exceed the maximums set out in the bylaws and the Strata Property Act);
- A recurring fine every 7 days for continuing contraventions (not including recurring contraventions), if the bylaws permit this; or
- Denied access to recreational facilities for a reasonable time, where the bylaw breach related to that recreational facility.
Once a decision has been made by council, whether the bylaw has been breached or not; council must promptly send a letter to the owner and/or tenant advising of council’s decision and any penalty imposed.
Council then records its decision in the meeting minutes and distributes copies of the minutes to all owners.
- The content of the minutes must carefully consider the Personal Information Protection Act (PIPA) and council should review the Privacy Guidelines for Strata Corporations for what to include.
Know when to seek legal advice:
- The Strata Council is not familiar or comfortable with bylaw enforcement procedures and would like some additional guidance or support.
- A resident is hotly disputing the allegations or is threatening to sue.
- One resident is abusing the bylaw enforcement process to harass another resident.
- The bylaw breaches are causing serious problems, safety, security, liability or other concerns which require immediate correction.
- The bylaws are ambiguous, unclear, controversial, or possibly invalid.
- The bylaws are outdated or no longer reflect the will of the ownership.
- The bylaws haven’t historically been enforced fairly, consistently or at all, and the Strata Council wants to correct that without being perceived as unfair or inconsistent.
- An owner is contravening the bylaw repeatedly or continuously, and the Strata Council is having difficulty bringing an owner or tenant into compliance.
Bylaw enforcement which is not done correctly, or is perceived as unfair can result in costly litigation. For more information or assistance, please feel free to contact our office. We can often find practical and creative solutions to difficult condominium puzzles.
