Strata Alert: The Benefits of Periodic Bylaw Review

The Benefits of Periodic Bylaw Review

Amanda M. Magee, Associate
Phone:  604-685-5438
Email:  amm@lmlaw.ca

A recent decision from the Civil Resolution Tribunal (CRT) highlights the importance of having your strata’s bylaws reviewed to ensure that they are enforceable.

When a strata updates its rental restriction bylaw, the bylaw is often passed as an amendment rather than a repeal and replace. This is because section 141 of the Strata Property Act (SPA) has a grandfathering provision that allows owners and tenants to be exempt from a new rental restriction bylaw for at least 1 year after the bylaw is passed (or longer if they have an existing tenant). Strata lawyers will often recommend amending a rental restriction rather than repealing and replacing it with a ‘new’ bylaw in order to avoid triggering that grandfathering provision.

However, the danger in passing a rental restriction bylaw by amendment is that a strata can end up amending a rental bylaw several times over the course of many years without knowing that the original rental restriction was never actually enforceable.

This is what happened in the case of Louie v. The Owners, Strata Plan LMS2083, 2017 BCCRT 72. The applicant was an owner who was renting out her strata lot contrary to the strata’s rental restriction, arguing that the rental restriction did not apply to her.

The strata had initially passed its rental restriction bylaw in March 2000 under the old Condominium Act. Unlike the SPA, which came into force 4 months later, the Condominium Act did not allow for a bylaw prohibiting rentals. The CRT found that the initial rental restriction bylaw was unenforceable because it was contrary to the Condominium Act, and that as a result, all later amendments to that bylaw were also unenforceable.

When the strata did a full update of its bylaws in January 2012 it included a newly written rental restriction bylaw. The ¾ resolution passing that bylaw attempted to get around the SPA’s grandfathering provision by stating that the existing rental restriction bylaw “remains in effect to the extent that it prohibits the rental of strata lots”. The CRT found this resolution to be “of no force and effect” since it was based on the unenforceable rental restriction. It therefore held that the 2012 rental restriction was a “new” bylaw, so the 1-year grace period under the SPA’s grandfathering provision began to run.

As an owner with an existing tenant at the time that the 2012 bylaw was passed, the applicant’s 1-year grace period began to run in November 2012 when that tenant moved out. When the applicant continued to rent out her unit to a different tenant 1 year later in November 2013, she was in contravention of the bylaw.

The owner argued that the strata had enforced its bylaws inconsistently against her and had acted in bad faith. The CRT disagreed, finding that the strata had mistakenly believed their old rental restriction was enforceable, and later mistakenly also believed that the applicant was exempt from the rental restriction by being an original purchaser. The strata learned of its mistake when it obtained a legal opinion in 2016, and at that point the strata advised the applicant that she was in contravention of the rental restriction and invited her to a council hearing.

The strata gave the applicant until the end of the year to end her existing tenancy, but she instead continued to rent her unit and filed a CRT claim against the strata. The CRT held that the strata had acted in accordance with the SPA, dismissed the applicant’s claim, and ordered her to immediately stop renting her unit.

This decision emphasizes the importance of having your strata’s bylaws and amendments periodically by a strata lawyer to ensure that they are enforceable, especially with respect to bylaws that have been passed as amendments to much older bylaws.

WHAT WE DO: Lesperance Mendes has been advising strata corporation and strata lot owners on bylaw amendments and enforcement since 1997. To learn more about our strata property law practice, contact Amanda Magee, Associate, at 604-685-5438 or by email at amm@lmlaw.ca or Paul G. Mendes, partner, at 604-685-4894 or by email at pgm@lmlaw.ca.

Caution: The content on this website is intended as general information only and should not be relied on as legal advice. Views expressed in articles, alerts and other publications may not apply to the circumstances of a specific case, and are subject to change as a result of legislative amendments and court or tribunal decisions. Readers should obtain their own up-to-date independent legal advice before making any decisions that affect their rights.