One person’s trash may be another person’s treasure
Paul G. Mendes, Partner
Phone: 604-685-4894
Email: pgm@lmlaw.ca
Figure Ski Enterprises Inc v The Owners, Strata Plan K 838, 2018 BCCRT 46.
If your strata has balconies, patios, or an underground parking facility, chances are someone is using those areas for storage. If those areas are common property or limited common property (LCP), your strata likely as rules and bylaws regulating what can and cannot be stored in those areas.
Take a walk through any strata, however, and you will inevitably find that owners routinely ignore such bylaws and rules. Most strata units are small, and with storage at a premium, decks and patios are frequently used to store all kinds of things. Such areas present themselves as what some might refer to as a “target-rich environment”.
If a strata does not act quickly to nip this problem in the bud, these decks and patios can quickly become an eyesore.
Fortunately, section 133 of the Strata Property Act provides the strata with a remedy in such cases. Under this section, a strata may do “what is reasonably necessary to remedy a contravention of its bylaws or rules” including “removing objects from the common property.” Further, the strata may require that the reasonable costs of remedying the contravention be paid by the person who may be fined for that contravention of the bylaws. Note that section 133 does not require the strata to store items removed from common property. Accordingly, most stratas will remove the items and dispose of them at the strata’s discretion and the owner’s.
As with any other bylaw enforcement activity, the strata must comply with section 135 of the Strata Property Act BEFORE exercising this remedy. As we have previously noted, failure to comply with this section is fatal. Section 135 requires the strata to provide an owner with the particulars of the complaint, and a reasonable opportunity to respond to that complaint, including a hearing before council if requested.
In Figure Ski Enterprises Inc v The Owners, Strata Plan K 838, 2018 BCCRT 46, an owner had stored “synthetic turf and school-type lockers” on an LCP deck. The rolled bundles of turf and lockers were stacked on top of each other. In August of 2015, the council president advised the owner by email that these items had become an eyesore, and that the strata would remove them at the owner’s expense if the owner failed to do so himself. There was no reference to specific bylaws or the requirements of section 135 in this email.
A year later the strata manager wrote again to the owner, this time citing a bylaw, and giving the owner 14 days to respond to the complaint or request a hearing before the council. The owner ignored this letter, so the strata removed the items and disposed of them approximately three weeks later. The strata also charged the owner $250 for the cost of removing and disposing of the items.
The owner asked for the return of his treasure, and upon learning that it had gone to the dump, he brought a claim against the strata in the Civil Resolutions Tribunal, for just over $10,000 to replace the items. These must have been some very chic rolls of synthetic turf and school lockers!
The Civil Resolutions Tribunal sided with the owner and ordered the strata to reimburse the owner $3,517.83 and to remove the $250 chargeback from the owner’s account. Unfortunately, the owner was unable to substantiate the value of these items so the Tribunal Member valued them based on the limited evidence she had on hand.
The Tribunal Member ruled in the owner’s favour because she found that the strata had failed to comply with section 135. It turns out that the bylaw cited in the strata manager’s letter did not cite the correct bylaw. The bylaw cited in the letter referred to pets and not storage of items on common property. Essentially, the Tribunal Member held that “providing particulars of the complaint” under section 135 means citing the correct bylaw, and not just any bylaw.
This case reaffirms the principle that strict compliance with section 135 is necessary before a strata can enforce any of its bylaws or carry out any of its remedies under the Strata Property Act. It is very important that section 135 notice letters include not only a general description of how the bylaws have been contravened, but also a specific reference to each bylaw which has been contravened.
WHAT WE DO: Lesperance Mendes has been advising strata corporations and strata owners on bylaw enforcement matters since 1997. We can assist strata corporations and strata owners with all aspects of bylaw enforcement, including assisting you to prepare and respond to proceedings in the Civil Resolutions Tribunal. We can also review your bylaws for enforceability, and make recommendations on changes that will improve enforceability of bylaws. To discuss your strata lot issues, contact Paul G Mendes, Partner pgm@lmlaw.ca or 604-685-4894.
THIS ARTICLE IS NOT LEGAL ADVICE: This article provides general information and should not be relied on without independent legal advice.