Case comment by Paul G. Mendes
The Owners, Strata Plan VR 390 v. Harvey, 2013 BCSC 2293
In the wake of the most recent ruling in the Jordison case, strata councils are enquiring about the steps needed to “evict” owners from their strata lots. These questions are prompted by a misunderstanding of what happened in Jordison, fueled largely by media reporting on the case.
Jordison was not about an eviction, it was about an application for the forced sale of a strata lot under s. 173 of the Strata Property Act (the “SPA”). Section 173 allows the court to make any orders it considers necessary to enforce a strata’s bylaws. Eviction is a remedy that strata may obtain against a tenant (not an owner) under s. 138 of the SPA.
In The Owners, Strata Plan VR 390 v. Harvey, 2013 BCSC 2293, the strata sought to enforce the bylaws against the owners of a townhouse unit who had made a number of unauthorized renovations to the common property over a period of years. Legal proceedings ensued and the strata obtained two interim injunctions against the owners in 2009 and 2010. Those injunctions barred the owners from making further changes to the common property. The court also ordered that the owners pay $70,000 in legal costs to the strata.
Notwithstanding these earlier orders, the owners continued to flout the bylaws and the injunctions. The strata fined the owners $22,400 for breaching various bylaws and applied for a forced sale under s. 173 of the SPA.
One of the interesting aspects of this case is the extent to which the owners seemed unwilling or unable to follow the bylaws or any of the previous court orders made against them. This caused the court to observe:
“Most citizens would honor the SC Bylaws without the need for a court order. Most citizens would honor a court order, particularly after paying $70,000 in special costs relating to the order. These factors suggest that a strong remedy is necessary.”
Yet the court refused to order a forced sale of the owners’ strata lot because there were “…other less draconian remedies available”. One of the facts the court considered was that a forced sale would trigger a $350,000 tax liability on the owners and that it would deprive them of the $250,000 worth of renovations they had made to the property over the years. The court also found that since the owners’ renovations were now substantially completed, the risk of future friction between the parties was considerably diminished. The court opted instead to vacate the previous interim injunctions and replace them with a new permanent injunction.
The decision, in this case, highlights the hurdles that strata must overcome to get an order for sale as a bylaw enforcement remedy under s. 173. The court will consider not only the potential for future friction between the owner and the strata but also the hardship that the forced sale might visit on the affected owner. If any other remedies are available, an order for sale as a bylaw enforcement tool seems unlikely.
WHAT WE DO: Lesperance Mendes advises strata corporations and owners on all matters of strata bylaw enforcement. Our experienced strata lawyers have obtained injunctions against owners and orders for the sale of strata lots. To find out more about how we can assist you with your strata property law matter, please contact Paul G. Mendes, a partner.
Lesperance Mendes Lawyers
900 Howe St #550, Vancouver, BC V6Z 2M4
(604) 685-3567