Archive for the ‘Strata Information’ Category

Strata insurance coverage is limited to the cause

Thursday, November 14th, 2019

Limiting risk for one owner may raise it for others

Tony Gioventu
The Province

Dear Tony:

Our strata corporation renewed its insurance policy in October. Our deductible was increased from $25,000 to $100,000 and our policy has increased from $69,000 to $121,000. The increase will impose an eight-per-cent increase in our annual budget without any other increases, but we are most concerned by the deductible rate.

After investigating homeowner coverage, we have found most policies limit a claim amount for a deductible if the owner is responsible to a maximum of $50,000 or in rare cases, $75,000.

If an owner or their tenant is responsible for a claim, are we restricted to the limit of the amount an owner can cover in their policy?  

Our property manager has suggested a bylaw that limits an owner’s risk to $50,000, which would mean the remaining owners would cover the balance of the $100,000 deductible, or we would deplete our contingency funds to cover the cost.   

Because we averaged two claims a year over the past five years relating to water and careless owners, it is likely we will have at least one claim this year.

Would we be placing our owners in a position of greater risk by adopting this bylaw or is it a viable option for the strata corporation to consider?  

Marco D., Burnaby 

Dear Marco:

Insurance rates and deductible limits are rapidly rising across B.C. With a reduced number of companies providing insurance coverage and an increased rate of claims and risk, our brokers are struggling to obtain competitive coverage at manageable rates for the public.

The risk with multi-family buildings is the compounded damages that result from fire and water claims. When unit 401 experiences an overflowing bathtub, failed washing machine hose, burst water line on a refrigerator ice-maker or dishwasher line, or an aging piping system that fails, it is likely three or more units may be affected.

If the amount of a claim is below a deductible, each unit owner and the corporation bear the cost of their respective damages.That alone is a compelling argument for everyone to purchase homeowner insurance.

If the amount is above the deductible, the strata policy covers the claim to repair/replace the original fixtures and structure installed by the owner developer. If an owner is responsible for the claim, which does not necessarily require any neglect or wilful action, the strata may seek to recover the amount of the deductible from the owner. 

Limiting the risk of what an owner is responsible to cover may limit the risk for the claim, but it increases the risk to the remaining owners, which may not always be practical or fair. If an owner, their tenants or occupants cause a claim as a result of neglect or a willful act, why should the balance of the owners cover the cost?

A common example is damages caused by tenants who have been the cause of chronic problems in a building and the landlord is unwilling to evict the tenants, or an owner who has a hot water tank that is well past normal life expectancy and is refusing to upgrade. Why should a landlord or owner who has failed to address a problem or a risk be exempted from the higher deductible?  

If your strata corporation is considering a bylaw that limits the amount an owner may have to pay for a deductible, obtain legal advice from a lawyer experienced with strata law and insurance specifically for strata corporations. 

Certain conditions within the bylaws may ensure your strata corporation is not exposed to claims caused by neglect or wilful action or they could potentially limit your ability to recover the deductible. If there is a claim on the strata insurance resulting in a claim, the deductible is a common expense of the corporation.

There are several options to recover/pay the amount. If an owner is responsible for the claim, hopefully the owner has insurance and their insurance will voluntarily cover the deductible amount. However, if that is not the case, the strata corporation pays the claim and then commences a claim through the courts or the Civil Resolution Tribunal to obtain an order for the payment of the deductible amount.

If the owner is not responsible, the deductible is a common expense of the corporation and the strata corporation may pay the amount from the operating fund, the contingency reserve fund, or the strata council, without the need for a three-quarter vote at a general meeting, may set a special levy for the deductible and apply that as an assessment to all strata lots based on unit entitlement.  

As we approach deductible amounts of $50,000 $100,000 or $250,000, this is the most likely scenario. This may also allow owners with insurance that include this coverage to claim their share of the deductible on their policies. 

Remember, even though the special levy does not require a three-quarters vote, the council must still comply with the requirements of the act and show the total amount of the levy, how it is calculated and each unit share, the purpose of the levy, and the due date for the levy. 

© 2019 Postmedia Network Inc.

Bylaws regulate charging stations

Thursday, November 7th, 2019

There are many different variations of parking allocations, assignments and designations

Tony Gioventu
The Province

Dear Tony:

How does a strata council manage a request to install charging stations when the alterations to our electrical will exceed $100,000 and our owners will not fund the cost?

Our council are in support of the installation of stations but we may require significant upgrades to support charging stations and the spaces were all originally allocated as limited common property and the owners requesting permission to install stations are the furthest from the electrical services.

One of the questions that continues to arise is, what happens after we do this upgrade and more people want charging stations? As an older building constructed in 2002 our owners are concerned the costs of electrical upgrades will divert many of our planned funds for building renewals.

Is it possible to limit the number of stations in our building so we can control costs? Would this be unfair to future owners wanting to purchase an electric car?

Kent M. Vancouver

Dear Kent:

The installation of charging stations in parking areas that are common property and limited common property is regulated under the bylaws of your strata corporation and may trigger a requirement for owners’ approval at a general meeting. If the alteration is a significant change in the use or appearance of common property, the strata corporation is required to seek the approval of the owners by three-quarters vote at a general meeting.

If permission is granted under the bylaws, the strata corporation may impose conditions on the approval. These could include the cost of the installation, cost of changes or upgrades, future cost of maintenance, additional insurance costs if any, what occurs in the event the owner sells their unit and the new buyer does not have an electric vehicle and any other obligations that may arise.

Before a strata corporation considers the installation of charging stations, an electrical audit to establish the capacity for the installation of charging stations, their ideal location if that is an option and the type and cost estimates for electrical upgrades. A legal review of your bylaws, the registered strata plan and the method of how parking allocations were assigned by the developer is also essential.

There are many different variations of parking allocations, assignments and designations, and no single answer fits all. Parking spaces may be common property, permitting the strata corporation to reallocate parking, or they may be common property with leases or licenses assigned by the developer limiting the ability to re-allocate or change or they could be limited common property created by the developer requiring a unanimous vote to change, or part of a strata lot, which is often found in townhouse or bare land strata corporations.

Answer the basic questions first, and your decision making will be much easier.

  1. Electrical: is there capacity for stations or do we require upgrades?
  2. What are the costs? Who will pay for installation, upgrades and future costs?
  3. Will the stations be exclusive for an owner or common access?
  4. Are there property designations or parking allocations that prevent flexibility with the parking?
  5. Do we require a three-quarters vote approval of the owners at a general meeting?
  6. Do we have capacity for future stations?

© 2019 Postmedia Network Inc.

Strata must comply with Human Rights Code

Thursday, October 31st, 2019

A bylaw is not enforceable if it contravenes the Strata Property Act or the Human Rights Code

Tony Gioventu
The Province

Dear Tony:

As president of our strata, I am trying to prevent our council from taking a position that I am certain will result in either a complaint with the tribunal or human rights.

There are two townhomes for sale in our Maple Ridge complex, and in one of the townhouses, the buyers have requested permission to install a small four-foot ramp as their youngest child currently requires a wheelchair.

We have a bylaw that prohibits any types of alterations to the exterior of the units, including the addition of screen doors, awnings or ramps. A group of owners has already submitted a petition directing council to enforce the bylaws. Our council members insist that we must enforce our bylaws unless the owners agree to an amendment.

We are at an impasse. We have a bylaw that we have an obligation to enforce and we have a request to alter common property to accommodate access. How could this be best managed?

KDR

Dear KDR:

Unless there is an exempting provision, a bylaw is not enforceable if it contravenes the Strata Property Act, the Human Rights Code or any other enactment or law. Accommodation for access under the B.C. Human Rights Code is a requirement to the extent the accommodation is reasonable and does not result in undue hardship for the owners of the strata corporation. 

A test of undue hardship is generally financial. Would the alteration result in a serious hardship for the corporation?

A common example may be the requirement or request for the strata corporation to install an elevator in a building where one does not exist. The installation, construction and costs could easily result in undue financial hardship for the strata corporation owners and may also result in loss of common areas or parts of strata lots.

A common argument against alterations: “The buyers knew when they bought in, we had no ramp at the front door, why should we install it now?” Or: “They are not owners yet and the strata corporation does not have to respond to their request or inquiry.”

The rights to accommodate or the intent to accommodate are both protected under the Human Rights Code. Whether the party is a buyer or the owner, the strata corporation has an obligation to comply with the Human Rights Code, consider the request, and in good faith, negotiate with the applicants.

As the request relates to common property, the strata corporation may request reasonable conditions be met, such as the type of construction, the requirement to meet building codes and obtain building permits, if required, and the obligations for maintenance. 

If an alteration is to the main common entry or access to a common area is requested, the strata corporation may be responsible for the costs and the alterations on a voluntary basis or may be ordered by the Civil Resolution Tribunal or the Human Rights Tribunal to complete the alterations. 

Items such as common FOB-activated powered doors, lifts and ramps, may all be ordered to accommodate owners, tenants and occupants. 

If a strata corporation has discovered it has adopted an unenforceable bylaw, seek legal advice before you consider enforcing or applying the bylaws. A small investment to ensure the rights decisions are made before your strata corporation is named in a tribunal or human rights claim will significantly reduce your liabilities.

© 2019 Postmedia Network Inc.

Don’t be misled by executive titles

Thursday, October 24th, 2019

Turn to the bylaws to find out how vacancies are to be filled

Tony Gioventu
The Province

Dear Tony:

We have run into a problem with our strata council executive.

At our annual meeting, we elected the president and the treasurer so the owners would have input into the positions. Our president has just sold his strata lot and now we have no president and there is a dispute in our strata over how the position is replaced. This seems like a silly dispute, but owners insist that we must call a special general meeting to elect a new president and the remaining council members declare it is their right to appoint a vacancy.

Perhaps if you could explain the process that might help us resolve the dispute and move on quickly. 

Tara M., Burnaby

Dear Tara:

The number of council members, council eligibility, how you elect executive council members, the term of office of council members and what happens if there is a vacancy created are all matters that are addressed through your bylaws.

The Schedule of Standard Bylaws of the Strata Property Act establishes the following: the number of council members, minimum of three maximum of seven, who are elected at the annual general meeting for a one-year term that terminates at the end of the next annual general meeting; and the executive positions of president, vice-president, treasurer and secretary, determined by the new strata council at a council meeting by majority vote. 

Any council member may be elected to an executive position and elected to more than one position other than the president or vice-president. If there is a vacancy, the remaining council members by majority vote may fill that position from any person eligible to be elected or appointed to council.

If all the council members have resigned, 25 per cent of the owners may agree to give notice of a special general meeting to elect a new council. Bottom line: unless your bylaws have been amended, the owners at a general meeting elect council members, the council members decide at a following council meeting to elect executive positions.

Don’t be misled by the term executive officer or executive position. Other than chairing meetings and an additional casting ballot in the event of a majority vote tie, the president and vice-president have no special powers or authority. They vote on resolutions in the same manner as any other strata council member. Council members only have authority if the council has voted to delegate authority to a single council member, and that decision, along with the delegation of authority, is recorded in the minutes. 

If your bylaws have been amended, which is more common in large communities, it is possible to elect the president or other executive positions if they are identified in the bylaws; however, there are pitfalls to this model.

While it may give the owners greater input into the person acting as your president, how do you replace the president if they cease to be eligible to act as a council member, or are in violation of a bylaw owing strata fees or special levies, or are unable to act or no longer an owner due to a sale, or end up acting like a tyrant and placing the corporation in jeopardy? 

It may require a special general meeting which may be a significant cost and disruption to the strata corporation. If your strata corporation is considering a bylaw to permit owner election of executive positions, the bylaws should also address the contingency plan when those positions become vacant. 

In Tara’s strata corporation, they simply added a bylaw that required the president to be elected at the annual general meeting; no procedure was contemplated to fill the position of the president, and they may be required to hold a special general meeting for the election.

© 2019 Postmedia Network Inc

Strata fines never automatically imposed

Thursday, October 17th, 2019

Review bank service agreement for consent to pay fees

Tony Gioventu
The Province

Dear Tony:

Several years ago, our strata corporation adopted a bylaw requiring owners to provide payments by automatic bank withdrawal. At the time, several owners raised concerns about the strata corporation having access to their banks accounts, but were assured it was only for strata fees and nothing else.

To make this simple, I opened an account just for my strata fees and deposit the money on the 15th of each month for the following strata fee payment.

I just received a notice from my strata property manager that there are insufficient funds for the strata fees and I am now in arrears. The notice also demanded payment and notified me that a lien would be filed against my unit if I don’t pay.

I contacted the manager and she informed me I was fined $200 for parking in the wrong space and that amount was applied to my strata fee account. Of course, I am outraged. 

She sent me a copy of my bank payment service agreement to authorize payments. It says on the form the strata corporation may apply and withdraw any fines or penalties from the account.  

Is this legal? By signing this form, have we waived our rights and authorized the payment? The irony here is I don’t have a car and don’t use parking, so the violation claim is bogus. 

Colleen P., Victoria

Dear Colleen:

While automatic bank payments for strata fees are practical for monthly fees, inexpensive to manage and reduce the risk of lost cheques or unreported cash payments, they can be abused by councils and managers who do not follow the enforcement conditions of the Strata Property Act.

When an owner provides consent for direct withdrawal, it is important to read the document. You do not have to consent to any fees other than monthly strata fees, and even if you do, the application of fines, damages or insurance deductibles under your bylaws still requires the strata corporation to first apply section 135 of the act before any action is possible. Bylaws and user agreements do not override the act.

Before a strata corporation imposes a fine or penalty, it must first give the owner or tenant the notice of complaint with the particulars in writing, entitle the owner or tenant the opportunity to respond in writing or request a hearing, and then the strata council is  required to render a decision regarding the outcome of the fine or penalty. Fines are never automatically imposed.

This also applies to the late payment of strata fees. As the payment of strata fees is a bylaw, the late payment may result in a fine; however, this is still a bylaw penalty and the same enforcement conditions apply. The corporation/manager cannot apply other charges to your account without your consent.

Once again, it is important to review your bank service agreement to determine if you have consented to any fees such as bylaw penalties, damages or insurance deductibles being first applied to your account before strata fees are paid. 

To resolve this formally, request a hearing with council, provide it with the documentation to refute the claim and if this is a credible bylaw complaint, demand the particulars in writing, and request a formal decision in writing. 

There are many misunderstandings with strata corporations and managers often relating to poor communication between the parties. A formal written decision of the council will be the evidence you may need to rely on if you need to apply to the Civil Resolution Tribunal to order a remedy. 

It is important for owners to monitor their accounts monthly as late payments may result in a rate of interest being imposed under the bylaws and added to the fees. Interest bylaws on strata fees and special levies, if they do not exceed 10 per cent compounded annually and calculated monthly, form part of the fee. It’s the same advice banking and credit institutions give all clients.

Check your statements and accounts at least monthly. If a penalty has been imposed without complying with the act, immediately notify your manager and council of the error and request a correction.  If you are in doubt about what you signed for, request a copy of the agreement provided to the strata council or manager.

© 2019 Postmedia Network Inc.

Stratas obliged to ensure safe access for all residents

Thursday, October 10th, 2019

Stratas obliged to ensure safe access for all

Tony Gioventu
The Province

Dear Tony:

I live in a condo apartment building that was completed in 1995. We have 48 units over eight floors.

Our family has lived in the building since day one, but our community is rapidly aging and we find ourselves facing some new challenges.

Our underground parking is easily accessible off the main street and anyone with a walker or wheelchair uses the main gate to our parking garage, but we do not have an isolated walkway area or separate door for access. Owners are growing more concerned each day that the age and physical limitations of the owners, and the lack of lighting and shelter over the garage entry present safety risks and it is only a matter of time before a resident is injured. 

Several owners have requested a modification to our front entry to ensure owners have safe, well-lit access in a covered area that also has a security camera.  This would require a minor modification to our front area to level the walk to eliminate one small step and the installation of an automatic front entry door system. 

We took this to a meeting of the owners with a total estimate for the cost of $18,500, including the door activator to our front lobby and the parking garage lobby, security FOBS and the concrete grading of our walk to eliminate the step to meet the building code. 

One owner insisted that people who can’t make the step or open the door shouldn’t be living in our building and convinced enough owners to vote against the alterations. 

How do we resolve this issue before a resident suffers the consequences? 

Elizabeth Millar

Dear Elizabeth:

Every strata corporation in B.C. must comply with the provisions of the B.C. Human Rights Code. Part of that code has the requirement, up to the point of undue hardship on the owners, to accommodate access to facilities and common property of the strata corporation. 

Undue hardship is measured as an extreme financial imposition or condition that would not be reasonable or possible for the owners to meet. An example of that may be the installation of an elevator in a building where no such elevator existed and the cost would be excessive and cause a hardship to the owners.

There are many examples of access or accommodation for special needs that have been ordered by the Human Rights Tribunal and your building would be no exception. Conversions of doors handles to levers, installation of FOB-activated door entries, alterations to strata lots exempt from bylaws, modifications for access of common areas and main entries of buildings, and continuous operation of the remote door activation system are all decisions where strata corporations have been ordered to permit an alteration or pay for the alteration to ensure access. 

Whether an owner or occupant knew about the limitations before they moved in or their physical conditions have changed is irrelevant. It is the obligation of the strata corporation to accommodate wherever possible to ensure safe access.

Like all conflicts, whether they relate to maintenance and repair of buildings, fair treatment of owners, tenants and occupants or access to common property and strata lots, the most prudent and inexpensive course of action is for your strata corporation to make this decision before an owner or tenant files a complaint.

Every time a strata corporation fails to meet a lawful obligation, with the result of a tribunal or court intervention, the costs simply balloon. Take control of the matter and make the decision. 

Your building is not unusual. There are many strata corporations that refuse to upgrade their entry systems and force the occupants to use the parking garage driveway and underground for direct access. They are essentially treating persons with limited accessibility as different classes of persons. No one should be intimidated into feeling guilty because they are requesting their strata upgrade access to their homes.

© 2019 Postmedia Network Inc.

Owners entitled to personal info collected by council

Thursday, October 3rd, 2019

Owners have right to information

Tony Gioventu
The Province

Dear Tony:  Our strata council has been engaging in some bizarre activities lately in how it holds council meetings and reports decisions to the owners. 

Our bylaws have an unusual condition that relates to in-camera minutes. The bylaw stipulates that in-camera minutes are recorded and kept in a secret place unless there is a court order for their release. Doesn’t this set our strata corporation up for a significant amount of conflict or expose it to the potential for lawsuits?

Our owners are beginning to question whether our strata council is holding secrets files on each owner as some recent information has been disclosed about past owners that was not included in the minutes.

Martin C., Victoria

Dear Martin: Your strata corporation and owners have two separate issues. The first is whether in-camera meetings result in minutes and how those minutes would be stored or accessed. The second is the collection of personal information and how that is managed and whether a person is entitled to their personal information. 

Under the Strata Property Act Schedule of Standard Bylaws, there are several references to the minutes of council meetings, but no direct acknowledgement of in-camera proceedings or how they are conducted. Remember, these are the standard bylaws that apply to every strata corporation, unless they have been amended.

Council meetings are convened in person or by electronic means, provided everyone is capable of communicating. A common example is a conference call or Skype meeting.

Owners are entitled to attend as observers unless the meeting is a hearing or matter relating to a bylaw contravention or other matters that may unreasonably interfere with an individual’s privacy, and the results of votes at a council meeting must be recorded in the minutes. 

The absence of observers is an indication a strata council may have an “in-camera” session to protect personal information. In-camera implies there is a session that is off the record, no observers and limited to the attendees decided by council.

When a strata council determines it is time to move in-camera, the minutes of the meeting show the time and possibly the reason. The in-camera session is convened, council discusses the matter, then exits the in-camera session. 

For example: council moved in-camera at 8:45 p.m. to address a bylaw complaint hearing requested by an owner. At 9:15 p.m., the in-camera meeting was terminated. The council has determined that strata lot 18 was in breach of the bylaws and has imposed a fine of $200. 

The risk with bylaws that attempt to protect minutes of in-camera meetings is they may not comply with the provisions requiring disclosure of information under section 35 of the act, and a bylaw cannot limit access to those minutes with the requirement of a court order, as compliance with the act may also be ordered by an arbitrator or the Civil Resolution Tribunal.

In addition, the bylaw has now indicated that council is recording minutes and gathering information about owners, tenants or occupants, which they are holding in secret and preventing access to. Under the Personal Information Protection Act, if an organization collects information about a person, that person is entitled to access their personal information.

If your strata council has collected or retained information relating to an owner, tenant or occupant, regardless of your bylaws, you must provide the collected information to that person on their request. This would include information relating to that person in any minutes of the strata corporation. 

This is one of the reasons why strata corporations are required to establish a privacy policy and appoint a privacy officer.

Strata corporations often confuse minutes and decisions with information provided by owners to assist the council with decision making. Your strata corporation may be required to collect information from an owner regarding a financial hardship or medical condition requiring accommodation. Discussing the content of this information at an in-camera meeting does not require minutes; however, the documents may provide council with the information necessary to defend it decisions if challenged.

Don’t be the council that abuses in-camera minutes to hide business from your owners. Protect privacy, discuss matters in-camera, and record your decisions in the council minutes accessible to everyone. 

© 2019 Postmedia Network Inc.

Condo Smarts: Walk strata to determine accuracy of plans

Thursday, September 26th, 2019

Walk strata to determine accuracy of plans

Tony Gioventu
The Province

Dear Tony:

We have an unusual problem in our strata corporation. We have several buildings and we are 308 units.

Several owners have approached council with a complaint that their strata fees are not correct and want to know how to change them. We have reviewed our schedule and the registered strata plan, and the comparisons show the fees and calculations are comparable, but the units do not appear to coincide with the size of the strata lots.

If we wish to have our building resurveyed and the measured areas and allocations changed, is that possible under the Strata Property Act? 

Daniella K., Tri-Cities

Dear Daniella:

There is an unusual omission on registered strata plans that I have found results in the strata lot numbers and the actual corresponding unit numbers frequently being incorrect.

When a strata plan is filed in the Land Title Registry, the schedule of unit entitlement, which is the formula used to calculate common expenses and special levies, includes only the strata lot number, the reference sheet number the strata lot is shown on and the schedule of unit entitlement. 

If it is an older plan, it may also show the schedule of interest upon destruction or the schedule of voting rights, if these apply, or that are filed separately. For example, the schedule may show strata lot No. 1, the sheet the unit is shown, which sets the boundaries of the lot, and that sheet often shows only the strata lot number.

Herein lies the problem: frequently, none of these documents lists the unit number on the schedule, such as “suite 101”.  

To ensure the proper fees are charged to the correct units, someone in the early days of the strata corporation had to create a master list showing the strata lot number, the unit number and the schedule of unit entitlement. There may have been a sample of the proposed plan in the disclosure statement by the owner developer, but these are projections only and not the actual registered plan. 

To confirm the corresponding strata lot number, unit number and unit entitlement are being applied, a person needs to physically walk the building with the registered strata plan and floor plans and verify that each of the corresponding units has been identified correctly. Before you assume there was an error with the strata plan, I suggest your council, manager or a consultant walk your floor plans with the documents and verify these corresponding units are correct.

We recently conducted a review with a large strata corporation, where 21 units were mixed up on the schedule. While the differences were small, they were incorrect and over a period of 20 years of operations and special levies, the amounts are significant. At this time, the strata council has corrected the schedule and issued a notice to all owners.

Rely only on documents filed in the Land Title Registry when referring to the registered strata plan, registered bylaws and other amendments filed by your corporation.

If there are errors on a strata plan, it is possible under the Strata Property Act to amend the plan and correct the unit entitlement. It requires a unanimous vote approved at a general meeting and a new survey that is approved by the superintendent of real estate and the registrar of land titles. The approvals are easy; the unanimous vote in your strata corporation would require that all 308 strata lots vote in favour of the change. A daunting task, to say the least, as only 43 owners in person and by proxy showed up at your last annual meeting.

© 2019 Postmedia Network Inc.

Condo Smarts: Aging receivables should be routinely reviewed

Thursday, September 19th, 2019

Aging receivables should be routinely reviewed

Tony Gioventu
The Province

Dear Tony:

We are a mid-sized condo building of 55 units. Our units are mostly retired owner-occupied as we have a very desirable location.

At our annual meeting, we routinely have at least 50 per cent or more of the owners in attendance.

This year at our meeting, our new property manager advised five owners when they registered that they owed fees for unpaid fines and interest and were not eligible to vote at the meeting. The five owners, who are long-time residents, were upset as this was the first time they had ever heard of any debts on their accounts. They asked the manager for details of the accounts and all he could advise is these have been on the books from the previous management company and they had no record of activities, only a receivable list showing the amounts owing. 

Our strata council claimed it knew of no outstanding accounts and was just as surprised. No one knew what to do and the five owners stayed at the meeting without a vote.

There must be procedures to prevent this type of situation. Could you advise how we should manage this situation? 

BWJ, Vancouver Island

Dear BWJ:

The Strata Property Act permits a strata corporation to adopt a bylaw that deems an owner is ineligible to vote for three-quarters and majority vote resolutions if the strata corporation is entitled to file a lien against a strata lot. If an enforceable bylaw exists, the strata corporation must also send a notice at least 14 days in advance advising the amounts that are due and that if the owner does not pay, the strata corporation is entitled to file a lien. This sequence must be completed to deem an owner ineligible to vote.

A strata corporation may only file a lien for unpaid strata fees, special levies, interest accrued on strata fees and special levies, reimbursement of the cost of work that is ordered by an authority under the act, or a strata lot’s share of a judgement against the strata corporation. 

A common error and unenforceable bylaw that is applied by strata corporations and strata managers is a generic statement that deems “if any money is owing”, the strata lot is not eligible to vote. Strata corporations and managers frequently place this statement on the notice package for general meetings and if applied incorrectly, without proper advanced notice advising if a lien amount is not paid within 14 days, you may jeopardize the outcome of your general meeting and seriously prejudice an owner’s voting rights. 

Fees such as bylaw fines, parking user fees, damages or insurance deductibles owed by a single owner who is responsible for a claim, do not qualify as lien-able actions and cannot be used to prevent an owner from voting. 

Every strata council and manager should routinely review all aging receivables and determine what actions should be taken to protect the owner’s interests and also to ensure there is a chain of evidence to support the claims.

A receivables list should also coincide with decisions of councils that relate to council meetings. For example, if an owner has been fined, that is a decision only of council at a council meeting and the decision is recorded in the minutes. Enforcing a receivables list without supporting evidence is simply a bad idea. At the time the meeting was called to order, the authority rest with the chair to determine if the parties are eligible voters. If there is any doubt, it is always best to protect the the voting rights of the owners.

I double checked your bylaws filed with the Land Title Registry and your strata corporation has no bylaws that relate to voting eligibility. Every owner, regardless of the amounts owing, is eligible to vote. Before you impose any such restrictions, check your bylaws and confirm the types of debts.   

© 2019 Postmedia Network Inc.

All strata-lot owners should ensure they have adequate insurance

Thursday, September 12th, 2019

Ensure strata lots have adequate insurance

Tony Gioventu
The Province

Dear Tony:

You mention in your Sept. 5 article that discusses the $75,000 water damage incident to three units where the deductible is $100,000 that “each strata-lot owner will be responsible for the repairs to their own units.”

Are you saying that the three impacted owners alone must pay for the repair of their own units? In our strata, the building envelope is the responsibility of the strata, so I fail to see how the affected owner gets stuck with the deductible on their unit.

All owners should have to pick up their entitlement share of the deductible despite the damage only applying to three units. 

Vic

Dear Vic:

Since last week’s column, I have received over 100 emails demonstrating confusion or disagreement over the situation where the three strata lot owners are each left with their own losses, because the amount of a claim is below the deductible. 

This is a significantly misunderstood problem and exposure of liability in strata corporations. Almost every strata corporation has adopted or maintained the standard bylaw that defines how an owner must maintain and repair their strata lot.

Except for a claim where the amount exceeds the deductible and a claim is processed, it is the responsibility of each strata lot owner to repair the damages to their own strata lot. This is a grim prospect for many strata lot owners, especially those who have not sufficiently insured their units for these types of losses, or where the deductible is now so high they cannot obtain insurance coverage.

If you apply the standard bylaws, the corporation does not have the authority to enter the strata lot to pay for the repairs. A strata corporation may adopt a bylaw where it will take responsibility for the repairs to a strata lot for damages in the event the amount is below a deductible, but that also assumes a number of risks for claims under different circumstances that may not be desirable or fair to the remaining owners.

When a strata corporation is faced with a high deductible, the cause must be identified. If the causes are manageable, deal with them. If a building is experiencing continual claims for water escape because the piping is failing, move quickly to have a project for re-piping approved or if your strata corporation is not willing to approve a special levy or repairs, file a claim with the Civil Resolution Tribunal to order the strata corporation to proceed with repairs, or in extreme case, an application to the Supreme Court of B.C. for repairs or the appointment of an administrator.

If the strata corporation has not met its obligations and neglected the building systems, resulting in uninsurable claims and repairs, the affected owners may have a claim against the corporation for their losses.  

I strongly recommend every owner, whether you are a resident or landlord, obtain homeowner insurance to cover your personal liabilities, living out expenses, coverage for personal contents that includes appliances, betterments, and most important, sufficient insurance to cover your personal exposure. Try to cover the risk of a high deductible in the event you are responsible for a claim, or if the deductible is high and your strata lot is affected by an uninsurable claim.

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