Court Confirms Strata’s Duty to Enforce the Alteration Bylaws

Chorney v. The Owners, Strata Plan VIS770, 2013 BCSC 14

This case involves two owners taking their council to task for failing to enforce alteration bylaws. The project was originally built in 1912 and later converted to an 8 unit residential strata. The building fell into disrepair and the strata corporation was placed under an administrator from 2008 until 2012. During building envelope repairs in 2011, the strata found asbestos in various parts of the strata lots and common property.

The administrator recommended special procedures for dealing with asbestos. The administrator also put all owners on notice that any renovations to strata lots and common property had to comply with all WorkSafeBC regulations dealing with asbestos removal, and that failure to comply with WorkSafeBC would be a breach of the strata corporation’s bylaws. The strata corporation had the standard use of property bylaw that states: “…An owner…must does not use the strata lot, the common property or common assets …[I]n a way that causes a nuisance or hazard to another person”. The strata also had an unusual bylaw that required owners to comply with the BC Building Code and “…any applicable municipal or regional district bylaws when altering, repairing, or renovating any part of the owner’s strata lot or the common property”.

Notwithstanding this warning, at least two council members started renovating their units without regard to the WorkSafeBC Regulations. The administrator cautioned the council members that they must comply with WorkSafeBC and that failing to enforce the bylaws could expose them to personal liability. The council members ignored the administrator’s warnings and continued with their renovations.

The petitioners complained to the owners and the council about this activity and eventually, the council recorded in the minutes that a fine of $200 would be issued.

Unsatisfied with those results the petitioner owners applied to the court under s. 165 of the Act for two things:

•(1) a declaration that the strata corporation had failed to enforce its bylaws, and that in so doing, the strata corporation had also breached its duty to protect residents and visitors from asbestos exposure; and

•(2) an order that the strata corporation enforce its bylaws and take steps to protect residents and visitors from the asbestos hazard.

The court granted the first part of the relief but not the second. The court found that the record showed that the strata corporation had failed to properly police the alterations and enforce the bylaws. The court also found that the strata corporation had failed in its duty to protect people from the asbestos hazard, but the court was unwilling to make any other orders. The court decided that it would take the council members “at their word” that the strata council would comply with its duties in the future. The court did order the strata corporation to pay the petitioner’s costs.

This is an interesting case for its surprising result, namely that the court would declare the strata to be in breach of its duty under the Act but make no orders requiring the strata or the council to comply with the Act and the bylaws in the future. There may be two explanations for this: (1) the petitioners were self-represented and the relief they were seeking would have been difficult to enforce; and (2) the petitioners had a history of litigation and disputes with the council: see Chorney v. The Owners, Strata Plan VIS770, 2011 BCSC 1811 (CanLII). As the saying goes, there are two sides to every story.

This case is important because it confirms a strata corporation’s duty to enforce the bylaws. The council cannot turn a blind eye to bylaw infractions and must take action when the safety of visitors and residents is at risk. Not discussed in the case, although canvassed extensively by the court in other decisions, is the obvious conflict of interest the council members were in. We shall save that issue for another day.

WHAT WE DO: Lesperance Mendes represents and advises owners on how to use the Courts to make the strata corporation perform needed repairs including Tadeson Orders and Court Appointed Administrators. For more information about our strata law practice, please contact Paul G. Mendes 604-685-4894 or by email at pgm@lmlaw.ca.

Lesperance Mendes Lawyers
900 Howe St #550, Vancouver, BC V6Z 2M4
(604) 685-3567