Paul G. Mendes, Partner
Phone: 604-685-4894
Email: pgm@lmlaw.ca
Paget v. The Owners, Strata Plan LMS 1951, 2021 BCSC 2111
A power of attorney is a legal document that gives one person legal authority to act as an attorney (i.e. make decisions) on behalf of another person. Under the BC Power of Attorney Act, an adult of full capacity can appoint an attorney to make decisions on their behalf, do anything the adult may lawfully do by an agent concerning the adult’s financial affairs. They are most often used by strata lot owners who reside full or part-time outside of BC, but they also arise in cases where the strata lot owner may have a cognitive impairment.
One question that has arisen many times over the years is what a Power of Attorney can do with all that power when it comes to strata corporation business? And can they do it better? The Paget decision puts to rest for once and for all whether a Power of Attorney is eligible to be on council in the place of an otherwise eligible strata lot owner.
The Pagets had owned and resided in the front half of a strata duplex in Vancouver since 1997. The respondent, Aloni, owned the rear half of the duplex, and while she no longer resided there, her son had lived in the unit since 2011.
As is sometimes the case in duplex living, the Pagets did not get along with Aloni Jr. The parties eventually agreed to appoint an administrator under s. 174 if the SPA. At issue was whether Aloni Jr. could serve on the strata council under a power of attorney executed by his mother. The court ruled that a power of attorney was ineligible to sit on council without a bylaw amendment.
The decision is based on section 28 of the SPA, which limits council eligibility to the following classes of people:
(a) owners;
(b) individuals representing corporate owners; and
(c) tenants who have been assigned a landlord’s right to stand for council.
The judge viewed s. 28 as “an exhaustive list” setting out eligibility. The fact that the Legislature did not expressly include an attorney acting on behalf of an owner indicated that powers of attorney were not eligible to sit as a strata council member. Accordingly, for a power of attorney to sit on the strata council, the corporation must have a bylaw that provides for that. This bylaw would be similar to the bylaw allowing adult children of owners or spouses of owners to be on the council.
The takeaway here is that if your strata corporation has someone on council who is only there because they are a power of attorney for an owner, the strata corporation must have a bylaw that permits powers of attorney to be on the council.
WHAT WE DO: Lesperance Mendes advises strata corporations and strata managers on bylaw amendments and all aspects of bylaw enforcement. If you have a particularly troubling bylaw enforcement issue on your strata council agenda, consider getting advice from one of our qualified strata lawyers. For more information, contact Paul G. Mendes by email at pgm@lmlaw.ca or by phone at 604-685-4894.
THIS ARTICLE IS NOT LEGAL ADVICE: This article provides general information and should not be relied upon without independent legal advice with respect to the specific facts of your case.