Abdoh v. Owners of Strata Plan KAS 2003, 2013 BCSC 817
A strata has a legal duty to enforce its bylaws under the Strata Property Act. Generally speaking, when a strata fails to enforce the bylaws any owner can apply to the court for the appropriate relief. But does the strata have a duty to enforce every bylaw infraction? In this case, the answer was no.
The plaintiffs owned a residential strata lot at Sun Peaks. Strata lot 80 was leased to a long-term tenant had operated a restaurant since occupancy of the strata in 1998. The strata plan designated the underground parking area as LCP for the exclusive use of the residential strata lots. In 1998, the strata approved a unanimous resolution to designate a portion of the parking area as LCP for use by strata to lot 80 as a storage area. The developer also allowed strata lot 80 to place cooling equipment on a small portion of the residential parking area, and a sign for the restaurant above the entryway to the building.
The plaintiffs objected to the sign and the storage of the cooling equipment on the residential LCP and they brought an action against the strata corporation to enforce the bylaws. In dismissing the action, the court confirmed that the legal maxim “de minimus non-curat lex” applies. The Latin phrase translates as “the law does not concern itself with trifles” and is used by courts to relax the enforcement of the law in some cases.
In this case, the court found that no residential owner was adversely affected by these matters, including the plaintiffs. The court concluded that the strata corporation was not required to enforce the bylaws simply for enforcement sake, where there was no benefit to any owner, and substantial costs would fall on a single owner. There was also evidence before the court that the strata were planning to have the area where the cooling equipment was stored designated as LCP for strata lot 80 and there was also evidence that the re-designation of the area would be approved. With respect to the signage, the court agreed that the sign did not comply with the bylaws but it also refused to make any order respecting the sign because it acknowledged that the owners may wish to amend the bylaws to allow the sign. The court preferred to leave the matters for the owners to decide.
The court obviously took into account the nature of the development as a resort property and the benefits conferred on the property by the long-term tenant in strata lot 80. In resort properties and strata hotels, the interests between residential and non-residential strata lots should be weighed differently than in conventionally mixed-use developments. The fact that there was evidence that the strata were proactively dealing with the issue by other means, i.e. LCP designations and bylaw amendments, was also important. The court may have reached a different conclusion if the strata were ignoring the complaints and doing nothing.
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