Time Limits, Limitation Periods and Change-Over Amnesia
The ancient Greeks had a word for everything. According to the helpful folks at Wikipedia, amnesia is the Greek word for “forgetfulness”. In modern usage, it has come to mean the memory loss that sometimes follows a traumatic event. Like an election.
The amnesia I am talking about, of course, is the kind that appears after a change of council following an Annual General Meeting, or a change in the strata management company.
I like to call this “Change-Over Amnesia,” and one particular way in which this amnesia manifests itself is through forgotten time limits and limitation periods.
We all know that there are time limits for everything. Those acid washed jeans you have been eyeing on Amazon? The time limit on those puppies expired in the 1980s. Everything has a time limit too, except perhaps an apology. It is never too late to say I am sorry.
The rule is no different in strata or condo corporation. Everything has a time limit and somehow the council or executive must remember all those time limits.
Some time limits never change, and are in easy to find places like the Strata Property Act (the SPA), the SPA Regulation and the registered bylaws. Most of the time limits that apply to stratas, however, are not easy to find. They may reside in warranties, air space parcel agreements, elevator contracts, and strata management agreements.
Then there are the time limits you don’t even know about. The time limit that “tick tocks” its way to expiry while the council remains blissfully of ignorant of it: the dreaded limitation period.
All lawsuits must be filed in court before the limitation period expires. Once a limitation period passes on a legal claim, the plaintiff can no longer sue. The plaintiff’s “cause of action”, it is whispered in the corridors of Canada’s law firms, has “expired”.
For strata corporations, an expired limitation period can mean the loss of the right to collect unpaid debts like fines and strata fees, or to sue the builder for breach of warranty or negligence. A missed limitation period can, in some cases, represent a loss of a significant amount of money affecting all owners.
Generally speaking, all claims in BC are now subject to a two-year limitation period. Although limitation periods can be postponed in some circumstances, and claims arising before June 1, 2013, may be subject to a longer limitation period, you should never make a decision about limitation periods without obtaining legal advice. If you have a short attention span and you cannot make to the end of this article, perhaps you will mark the previous sentence as your “take away”. Otherwise, bear with me to the end.
Due to change-over amnesia, stratas must develop simple ways to track time limits and limitation periods that concern the strata. Keeping records that contain time limits and limitation periods, such as warranties, contracts, and legal opinions is not enough. The time limits and limitation periods must be recorded somewhere that is accessible to all council members and managers. Maybe, gasp, this information should be recorded somewhere that is accessible to all owners.
Here are some suggestions that may help the strata keep track of time limits and limitation periods in the face of “change over amnesia”:
Use a single, shared but secure web-based email and calendaring system for all strata business.
Although no system is 100% secure, some of the free services offered by Google, Microsoft and other major tech companies will do the job and do not require any specific kind of device or expertise. All council business should be conducted on an official email account and not personal or work email accounts.
Similarly, council deadlines, time limits and limitation periods should be recorded on a single common group calendar accessible to all council members and the strata manager. If you are concerned about people deleting important information, look at ways to limit that risk by adjusting the security settings on the account.
Keeping track of deadlines and limitation periods in multiple places, like individual council members’ calendars, is a recipe for missed time limits and limitation periods.
Change passwords on all official strata email accounts every time there is a change of council or management.
They say the only secure password is one you cannot remember. I know it sounds crazy, but its true. For official council business accounts, every user should have a unique password, rather than a common password for all accounts. There are plenty of good and inexpensive password management apps on the market that will assist with this.
Anyone who uses the internet without a password manager, or who uses the same password for more than one account has only themselves to blame when their account is finally hacked. If you are too cheap to spring for a password manager, at least consider using a case-sensitive password with at least one punctuat!on mark and one numb3r. If you are not sure how to do that, ask your granddaughter or grandson.
Ideally one person (preferably the manager) should be in charge of administering the passwords to make sure they are changed following an election or change of management.
Consider secure cloud-based storage for important records that contain information about time limits and deadlines.
Examples would include warranty certificates, contracts, legal opinions, proof of loss notices, etc. Online cloud storage services like Google Drive, Microsoft’s OneDrive, Dropbox and many others are available for free, with enhanced security and more storage available for a modest additional subscription charge. Some management companies also offer similar services. You may also want to look at services that store your data on servers located in Canada.
The same rules that apply to council passwords should apply to cloud storage as well: no common passwords and the passwords should be changed every time there is an election or change of management.
The tools mentioned above are generally secure and do not pose a particular privacy concern as long as strong passwords are maintained and changed on a regular basis. In fact, keeping this information in a single online location reduces the risks posed by keeping it on particular computers or personal email accounts, which can be viewed by non-council members, hacked, changed, lost or destroyed.
A strong record-keeping system can save a strata significant legal expenses and may even help avoid unnecessary or unwarranted litigation. A lawyer who is assessing the strength of a strata’s potential claim against a party will find it much easier to determine the strata’s chance of success if it is clear how strong the defendants’ time limit or limitation period defenses may be. To quote from Jerry Maguire, “Help me help you”.
If you have any other suggestions on how to fight “change-over amnesia” or if you have any other feedback on our other strata alerts or our website, please let me know.
WHAT WE DO: Lesperance Mendes has been representing strata corporations and owners in the Courts of British Columbia since 1997. To find out more about our strata law practice, or to arrange a presentation to your strata, your management company or your organization, please contact Paul G. Mendes at PGM@LMLAW.Ca or by phone at 604-685-4894.
THIS ARTICLE IS NOT LEGAL ADVICE: This article provides general information and should not be relied on without independent legal advice.