Strata Alert: When buying or renting a commercial strata lot, always remember that the bylaws can change at any time

When buying or renting a commercial strata lot, always remember that the bylaws can change at any time

By Paul G. Mendes and Amanda Magee



Paul G. Mendes, Partner                                                              Amanda Magee, Associate
Phone:  604-685-4894                                                                  Phone:  604-685-5438
Email:                                                               Email:


Kunzler v. The Owners, Strata Plan EPS 1433, 2020 BCSC 576

If you asked strata lot owners to list in order of preference the types of business they would like to see in a commercial strata development, rounding out the list would be a tie for last place “cannabis” and “mortuary.”

Two strata owners recently learned that lesson the hard way after buying a strata lot in 2017. The strata lot in question was in a bare land strata on Salt Spring Island that was explicitly zoned for agriculture uses. The strata had no bylaw prohibiting cannabis cultivation at the time of purchase, and the owners did not inform the strata of their intent to grow cannabis before closing on the purchase.  Their decision not to tell the strata of their intentions before they purchased the strata lot turned out to be a critical fact in the case.

The owners only informed the strata of their plan in 2019, once they were in the late stages of obtaining regulatory approvals to operate their business. One of the conditions of that approval was the strata’s consent to run the business.

Once the other strata owners caught wind of these plans, the strata council received a groundswell of opposition to having a cannabis facility on site. The strata owners forced an SGM by petition and approved a bylaw prohibiting “commercial production of cannabis or cannabis-based products.”

The owners then applied to the BC Supreme Court to challenge the decision based on significant unfairness under s. 164 of the Strata Property Act. The owners argued that strata passed the bylaw solely to target them and their business and that the strata’s actions violated their reasonable expectations based on the bylaws in place at the time of purchase.

The “reasonable expectation” test for significant unfairness comes from the BC Court of Appeal’s decision in Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44. However, the Court found that, while a reasonable expectations test may make sense in the context of a strata council decision where council is exercising its discretionary authority, it was problematic to apply that test to the decision of the strata corporation ownership as a whole to pass new bylaws. That would effectively mean that a strata could never pass new use restrictions because any owner could argue that their reasonable expectations were violated. It would also undermine the strata’s function as a democracy to make binding governance decisions such as the passage of new bylaws.

The Court further found that even if the reasonable expectations test did apply, the owners, in this case, did not have a legitimate, reasonable expectation that the bylaws would never be amended to prohibit cannabis businesses or cultivation. Section 128 of the Act allows a strata to amend its bylaws at any time, including by introducing new use restrictions. The Act only provides grandfathering from new amendments for three specific types of bylaw restrictions: pet restrictions, age restrictions, and rental restrictions. It is therefore unreasonable for a strata owner to expect that the bylaws won’t be amended over time to introduce further restrictions, or that those restrictions won’t apply to them.

In this case, the Court said it was unreasonable for the owners to think that their expectations of being able to run a cannabis business at the time they purchased their strata lot would somehow bind the other owners from restricting such a use, or that they would be grandfathered from such a bylaw amendment when the Act does not provide grandfathering for that type of restriction. The Court ultimately sided with the strata corporation and dismissed the owners’ petition.

The Kunzle case underlines the importance of making inquiries with a strata corporation about existing use restrictions before purchasing a commercial strata lot, but also that it may be a good idea to make inquiries about whether a certain business may be accepted by the strata community even if it isn’t specifically prohibited by the bylaws. In Kunzler, the Court suggested the owners should have raised their proposed cannabis business with the strata before purchasing the property, rather than relying on the bylaws not changing.

It is important to note that, while a strata can pass a new use restriction bylaw at any time, it must comply with section 128 of the Act when doing so. Section 128(1)(c) requires mixed-use development with both residential and non-residential (i.e. commercial) strata lots, to approve bylaw amendments by separate ¾ vote resolutions of the residential and non-residential owners. This provides some protection for commercial strata lot owners who are often outnumbered by residential strata lot owners, and would otherwise be out-voted on bylaw amendments that may affect their commercial interests.


WHAT WE DO:  Lesperance Mendes advises strata corporations on strata governance issues since 1997. If your strata corporation requires legal advice with respect to bylaws and their enforceability, please contact Paul G. Mendes, Partner, at  or Amanda M. Magee, Associate, at


THIS ARTICLE IS NOT LEGAL ADVICE:  This article provides general information and should not be relied on upon without independent legal advice.