Strata Alert: Section 36 of the Strata Property Act and legal opinions
Section 35(2)(h) of the Strata Property Act requires a strata corporation to keep legal opinions obtained by the strata corporation, and s. 36 requires the strata to produce copies of those opinions to owners upon request. When a strata corporation is involved in legal proceedings it may receive requests for copies of legal opinions and legal invoices it has received during the dispute. Sometimes these requests come from parties directly involved in the litigation but sometimes they come from other owners or even potential buyers as part of the Form B disclosure process.
During litigation parties must produce all relevant records that can be used by any party in the lawsuit to prove or disprove a fact at issue in the case. Legal advice, however, is protected from disclosure because it is subject to “solicitor client privilege” or “legal advice privilege”. Solicitor client privilege attaches to any confidential communication between a client and her lawyer, and generally speaking, the communication remains confidential until the client “waives privilege” by disclosing the advice to the other side or even a third party. This disclosure can happen when a strata produces legal opinions or even legal invoices in response to a request under s. 36 of the Act.
Strata’s must be careful when handling requests for copies of legal opinions and invoices. As was observed in Azura Management (Kelowna) Corp. v. Owners of the Strata Plan KAS2428, 2009 BCSC 506, the Strata Property Act does not deal with solicitor client privilege very well. Section 169, for example, says that if the strata corporation is involved in a lawsuit with an owner, the owner does not have a right to “information or documents relating to the suit, including legal opinions kept under section 35 (2) (h)” or to “… attend those portions of any annual or special general meeting or council meeting at which the suit is dealt with or discussed”. Unfortunately, s. 169 only applies to the owners involved in the lawsuit. It does not apply to tenants, or to other owners who are not involved in the lawsuit or to anyone else who may be able to make a request under s. 36 with the authorization of an owner.
Another risk to confidential legal advice arises when the strata sues the developer or the builder (such as in a 2-5-10 warranty claim). In those cases, owners who may be allied to the developer can make requests for legal opinions about the claim, and we have found our legal opinions attached to affidavits filed in court by other parties on more than one occasion. Once a client waives privilege, it cannot be easily “un-waived”. Once the legal advice is out in the public domain, the “other side” in the law suit will have vital information about the strata’s legal strategy, and this information can be used against the strata by the other parties with devastating effect.
When a strata receives a request for legal opinions or legal invoices, the council and the strata manager should consider whether the requested documents are subject to solicitor client privilege. If the opinion and invoices relate to active or intended litigation, the strata can and should withhold production of those documents on the strength of the decision in Azura Management v KAS2428. If the strata is not involved in active litigation, it should consider obtaining legal advice before disclosing the documents, especially if litigation is likely at some point in the future.
WHAT WE DO – Lesperance Mendes represents owners, tenants, strata corporations and property managers in a variety of legal disputes. To learn more about how our team of experienced lawyers can assist you, please email Paul G. Mendes by clicking here or call us at 604-685-3567.
The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Legal advice should be sought about your specific circumstances.
Strata Alert: Lesperance Mendes Obtains Injunction Against Noisy Condo Owner
The Owners, Strata Plan LMS 4255 v. Newell, 2012 BCSC 1542
As reported on Global TV and CBC, Lesperance Mendes has obtained an injunction shutting down loud parties on limited common property and an owner’s right to use a patio hot tub after 11:00 p.m. With this case, our firm has set another important precedent on dealing with noise complaints, building on an earlier injunction we obtained for another strata (VR 2000 v. Grabarczyk).
The owner in this case lived in a high-end building located in Yaletown. Curiously, this was the respondent’s second time owning a unit in the building. He bought his first penthouse unit in 2003 and quickly established a reputation for himself as a loud late night partier. The strata corporation fined the respondent for the noise breaches and he dutifully paid all the fines. He sold his first unit in 2004 and then bought another penthouse unit in 2009.
The owner sought permission to make extensive renovations to his new unit, including the installation of a hot tub on his limited common property roof-top deck. The strata corporation, mindful of the owner’s history, declined permission for the hot tub. Undaunted, the owner went ahead anyway and used a crane to hoist the hot tub up to the 37th floor. He also installed a high-end sound system on the deck. According to the owner’s evidence, he spent $800,000 on the renovations.
In 2010, the renovations were complete and the owner moved in; that is when the trouble began. The neighbours began complaining of loud parties well into the night. The strata corporation obtained evidence from other owners, including occupants of the adjacent tower across the courtyard, who testified that they could see and hear the “goings on” at the respondent’s parties.
The strata corporation took the position that (a) the hot tub and other items on the deck were unauthorized alterations that should be removed, and (b) the noise constituted clear breaches of the strata corporation’s bylaws.
The respondent took the position that his renovations were not alterations within the meaning of the bylaw. He also argued that the complainants were overly sensitive to noise, and they should expect to hear such noises in trendy, urban Yaletown. He also argued that an injunction should not be granted where the noise is not “continuous”.
The court refused to label the installation of the hot tub and the sound system as “alterations” within the meaning of the bylaws because those installations were not permanent in nature. However, the court agreed that the owner had breached the strata’s bylaws on 13 occasions in less than 2 years. The court issued an injunction prohibiting the owner and his guests from using a sound system and the hot tub on the roof-top deck or his balcony during the strata’s quiet hours of 11:00 p.m. to 8:00 a.m.
This case underscores the importance of obtaining solid evidence when going to the court for injunctive relief. It also clarifies that the installation of items such as hot tubs and sound systems on LCP will not be considered alterations unless those installations are of a permanent nature. Strata corporations wishing to reduce the risk of late night patio parties should consider amending their bylaws to prohibit the installation of hot tubs and sound systems on patios and decks, and to impose a “quiet time” after 11:00 p.m.
Read the full reasons for judgment The Owners, Strata Plan LMS 4255 v. Newell, 2012 BCSC 1542.
WHAT WE DO: Lesperance Mendes advises property managers, strata corporations and owners on all matters of bylaw enforcement. Our lawyers have successfully obtained injunctions against noisy owners and successfully removed troublesome owners from ownership using procedures under the Court Order Enforcement Act. For more information about our strata law practice, visit our strata law page http://lmlaw.ca/Strata-Law/ or contact Paul G. Mendes at 604-685-4894 or email@example.com.