Archive for the ‘Strata Information’ Category

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.

© 2019 Postmedia Network Inc.

Big increases have hit strata insurance customers

Thursday, September 5th, 2019

Delinquent repairs could lead to high insurance deductibles

Tony Gioventu
The Province

Dear Tony:

Our strata corporation is an older wood-frame condo. In the past three years we have experienced a number of water claims on our insurance. Two claims this year were failures of pipes, and last year leaks were owner caused as a result of home repairs to a sink, overflowing bath tub and a self-installed dishwasher. When our insurance renewed in July our premium increased by 55 per cent and our deductible which was $10,000 has increased to $100,000! While we managed to recover the deductible cost from the owner caused claims, the accumulated effect has depleted our contingency funds. We have no idea how we will pay for another claim should one arise or if we could ever collect the deductible from an owner if they caused a claim.

Our broker has been incredibly helpful in advising us, but the risk of another claim has everyone terrified and an owner recently lost a sale when the buyers discovered the amount of the deductible.

Is it possible to demand owners obtain home owner insurance that covers a $100,000 claim?

Trudy W. Fraser Valley

Dear Trudy:

Dramatic increases in insurance cost and increased deductibles are common in our current insurance market. There are a limited number of insurance companies who insure strata corporations and they are only prepared to assume a certain level of risk before the insurance product is no longer profitable and places everyone at an unmanageable risk.

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When your broker goes to the market, they act on your behalf and place your profile and risks with the insurance companies. The cost of the policy, deductibles and exemptions are imposed by the insurer. As buildings age, an insurance deductible of $100,000 is much more likely if your community has frequent claims, has not been renewing aging building systems or permitting activities that increase the risk. While it is not an overnight solution, communicate with your broker and determine what steps can be taken to reduce risk.

Major building upgrades such as roofing replacement, building envelope upgrades and mechanical upgrades such as new piping will greatly reduce your risks. Likewise, permitted activities may also contribute to higher risks — such as barbeques on balconies and gas patio heaters. In addition to the increase of deductibles and costs of policies you may also see an increase in the number of exemptions or exclusions in your policy. Buildings with a reported envelope failure may still obtain insurance; however, it is unlikely any envelope failure water claims will be covered.

Under the Strata Property Act, the strata corporation must insure for the assets of the strata corporation and fixtures built by the owner developer. Other than a bare land strata where the homes on each lot are the insurance responsibility of each owner, the strata corporation must insure for the building structure and systems including the attached finishing (fixtures) when the building is complete.

There is no requirement for owners to insure their personal property, improvements to a strata lot or personal risks. Even if an owner does purchase home owner or landlord insurance, there are limits to the amount of a deductible that may be paid on homeowner policies. These often limit out at $25,000. While higher amounts may be available, the cost increases comparatively and most owners refuse to pay the cost.

Whenever there is a claim on a strata corporation policy, the deductible amount is a common expense of the strata corporation. When this occurs, it is up to the council to determine how they will pay for or recover that amount on behalf of the strata.

If an owner is responsible for the claim, and the owner or their insurer voluntary agrees to pay for the deductible amount, the claim and repairs proceed.

If the amount is a result of a common claim where no owner is responsible the strata corporation has two options to pay for the deductible. They may pay the amount from the contingency or operating funds if available, or the strata council, without requiring a special general meeting, may approve a special levy for the amount where every owner pays their share based on unit entitlement — the same formula used to calculate strata fees. In your strata corporation of 55 units, a $100,000 deductible will end up costing everyone between $1,820 and $2,300 based on unit size. This is at least manageable for owners without depleting the reserves and it permits each owner the opportunity to file a claim for their share of the deductible on their home owner insurance to pay the smaller amount. If an owner is responsible for the claim and they do not have insurance, cannot afford to pay the amount, or refuse to pay the amount, the strata corporation may file a claim with the Civil Resolution Tribunal to obtain a judgment for the amount. Remember the deductible on a strata policy is a common expense first and must be paid by the corporation. If your corporation does not have sufficient funds to pay the deductible, even though an owner may be responsible, you may have to impose a levy on the owners until the amount is collected, otherwise, the repairs and restoration may not commence.

There is one other negative impact of high deductibles. The strata insurance only covers damages to a strata lot if a claim is filed and the amount is above the deductible. For example, if several units are damaged and the claim total is only $75,000 against a $100,000 deductible, each strata lot owner will be responsible for the repairs to their owner units. I highly recommend all owner, landlords and tenants purchase insurance for their strata lot/condo. Bring a copy of your current strata policy to your broker to determine your risks such as deductible amounts, exemptions, and what insurance is available.

The strata corporation does not insure your personal property, your personal liability, your betterments or personal appliances that are not attached to the strata lot. If you are required to move out of your unit while repairs are underway, confirm that you have allowances for living expenses. During construction you still pay for your strata fees, your mortgage and taxes.

© 2019 Postmedia Network Inc.

Condo Smarts: Collective purchasing a perk to strata living

Thursday, August 29th, 2019

Collective purchasing a perk to strata living

Tony Gioventu
The Province

Dear Tony: We live in a townhouse complex in Langley. There are 38 units in our development and we are oriented in duplexes, so 19 buildings. Each of our units was constructed with a heat pump that is located in between each of the duplexes beside the garages.

Our building is now at the age where our heat pumps are due for maintenance or replacement and there is a significant division over who pays. The council has insisted each unit is responsible for its own heat pump as it only serves their unit. The strata corporation has obtained an opinion that advises each owner is responsible for their heat pump because it is located on limited common property for the sole use of each unit, and many elderly owners, with the support of our property manager, insist the strata was responsible for the heat pumps as they were on the outside of the units.

Who’s correct? 

Dorothy G.

Dear Dorothy: When it comes to air conditioners, where they are located, how the location is designated, who has the use of the component, how they were installed, who installed them, when they were installed and the bylaws of the strata corporation, there is a potential for any possible answer.

In your situation, gather all the documents that will help determine the outcome. You will require a copy of the Strata Property Act, your registered strata plan and any registered bylaw amendments your strata corporation has adopted and filed in the Land Title Registry. 

On your registered strata plan, the heat pump locations are shown on land that is limited common property assigned to each strata lot. It is important to understand that this designation does not necessarily make the air conditioners the responsibility of each owner as the air conditioner itself is not defined on the plan, only the parcel of land it is sitting on.

Our next step is to look at your bylaws. Your bylaws, similar to the Standard Bylaws of the Act only require owners to maintain and repair limited common property for events that occur once a year or more frequently — in simple terms, cleaning the site and snow removal. 

Your bylaws require the strata corporation to maintain and repair limited common property for all those items that occur less than once a year. This would include the repair and replacement of the heat pumps.

Your strata manager and owners were essentially correct. Because they are outside of the strata lot is partly correct,because of the property designation.

One of the major benefits of living in multi-family developments is the savings of collective purchasing. If each owner is required to call in a service technician for maintenance or repair, they pay the cost of the call and individual servicing for each call. It is much more economical for the strata corporation to negotiate a single-service agreement with a local heating company to routinely inspect and maintain the heat pumps and negotiate renewals. It will ensure the systems operate dependably, they operate quieter and ultimately consume less energy to function. The bulk savings is a cost benefit to all strata lot owners and the asset of the strata corporation is well maintained.

In a situation where the air conditioners were installed by an owner with the permission of the strata corporation as an alteration to a strata lot, the strata corporation would also want copies of any alteration agreements and a history of how the air conditioners may have been installed and maintained. 

Incorrectly installed air conditioners into window or wall openings are often the source of water ingress and pest infestations. These installations also become a focus on future disputes when owners sell their strata lots as there is often confusion over the responsibility of subsequent owners. Whenever a strata community is addressing these types of disputes, start with the information. No one knows the answer until you know all the facts.

© 2019 Postmedia Network Inc.

Condo Smarts: Plan ahead to avoid special levies

Thursday, August 22nd, 2019

Plan ahead to avoid special levies

Tony Gioventu
The Province

Dear Tony:

We sold our condo in Burnaby in February. At the time of the sale, we were instructed to pay for a special levy that was due over the next three years as a special levy to increase the contingency reserve fund. As part of our sale, the strata manager and council advised we would be required to pay for the next three years payments as a condition of the resolution.

Each strata lot is paying its share of $300,000 every six months starting Jan. 1, 2019.

While the resolution did not recognize any specific project, it did indicate the levy was to increase the reserve fund to plan for upcoming major projects.

There was a low turnout at the meeting last December to approve the special levy. As a result, owners petitioned for a special general meeting in July and cancelled the special levy by a three-quarters vote.

As an owner and seller who was forced to pay the levy in advance, how do we get the funds returned? The remaining owners are not paying the full levy as we were forced to pay it, yet the strata council is refusing to respond to an inquiry or pay the refund. Is any of this legal? 

Dave and Beth R.

Dear Dave and Beth:

Your circumstances are a perfect example why special levies that raise funds for the contingency reserve fund are fraught with problems and pose a questionable ability to comply with the requirements of the Strata Property Act. Special levies must to be treated separately from contingency reserve funds and for specific projects.

Section 108 of the act is clear on what is required and permitted for special levies. Special levies often cover an extended period of time for projects; however, the levy resolution must include the purpose of the levy, the total amount of the levy, the method used to determine each strata lot’s share, the date by which the levy is to be paid, or if the levy is payable in instalments, the dates by which the instalments are to be paid. 

A resolution that sets a schedule of payments and then imposes a payout on sale of a strata lot does not comply with the act. If there is a remaining schedule of payments after the sale, the subsequent owner is responsible for those payments and as a condition of the sale, may reduce the offer. 

Talk to your lawyer as you have a may have a valid claim due to a questionable resolution or unfair payment procedures imposed on a vendor. 

The strata must account for the funds collected for a levy separately from other money of the strata corporation, use the money collected for the purpose set out in the resolution, may invest the money, and must inform the owners about the expenditure of the money collected. Any interest collected from late payment penalties on the levy must become part of that levy and, of course, refund the balance of the levy to the owners if any owner is entitled to $100 or more of a refund. 

In addition, in the event the strata corporation is required to pay a common expense insurance deductible, the deductible may only be expended from the operating fund, the contingency reserve fund or by a separate special levy on the owners. A special levy fund for another purpose may not be used for insurance deductibles.

How do you segregate contingency funds and special levy funds that are pooled? Impossible. All these conditions combined create a number of complications for strata corporations that try to increase their contingency funds by special levy when there are problems. It is also unnecessary for strata corporations to raise contingency funds by special levy, which requires a three-quarters vote, as the contingency contribution as part of the annual general meeting is determined by a simple majority vote.

The argument has been presented that owners may not approve the same contingency contribution next year. There is nothing that prevents a strata corporation from adopting a bylaw that sets higher minimum limits or requires the strata corporation to reach a certain funding level each year based on their depreciation report. 

I encourage everyone to plan their contributions to avoid special levies. Always have a 10-year plan to know what major expense are on the horizon. It is much easier to pass a majority vote at an AGM to approve a budget for long-term contributions than a special levy you may have challenged in the Civil Resolution Tribunal or the courts. 

The argument that lower strata fees make it easier to sell strata lots is simply not true. Some of the best managed strata corporations in the Lower Mainland have strata fees 25-per-cent higher than their neighbouring properties and are fully funded for future repairs.

Because of the focus on funding, operations and maintenance, units sell quickly for full price or more, and sellers and buyers alike benefit from the investment in the future. If your strata corporation is proposing a special levy for contingency contributions, speak to an experienced strata lawyer first.

© 2019 Postmedia Network Inc.

Rules on strata surplus funds designed to protect owners

Thursday, August 15th, 2019

Rules on surplus funds designed to protect owners

Tony Gioventu
The Province

Dear Tony:

I sold my strata lot on June 3 and as a condition of the sale, the buyer agreed if there were any refunds from the $3.5 million special levy we paid in 2017, they would authorize the payment to be directed to the seller. 

I have been informed by an owner in the building there was $235,000 remaining in the levy, which would have left me with a refund of $2,905 from my original contribution. The buyer informed me they never received the refund because the strata corporation approved a new resolution that reallocated the special levy surplus to another decorating project. They decided to apply the remaining funds to new carpeting and painting throughout the building.

She did attend the meeting, voted against the resolution and advised the council she had an obligation to refund the surplus back to the buyer. Both the property manager and the president of council advised the strata corporation could do whatever it wanted, provided it passed a three-quarters vote and the refund was my problem, not theirs.

Is this permitted? 

Carol W., Surrey

Dear Carol:

A resolution that reallocates a special levy surplus does not meet the requirements of the act and your strata corporation is exposing the owners to dispute through the courts or the tribunal.

The Strata Property Act is very specific on the matter of a special levy surplus and what must occur. If any owner is entitled to a refund of $100 or more, all the funds must be refunded to the owners based on the same formula of entitlement as they were collected. If no one is entitled to a refund of $100 or more, the strata corporation may deposit that amount in the contingency reserve fund.

The legislation was specifically crafted to protect strata owners from councils misusing funds as the funds must be used for the purpose set out in the resolution and could not use a surplus for other expenses.

An option that strata corporations are trying to apply when there is a surplus available and the strata corporation still has outstanding projects is to convene a meeting to approve another special levy for the same surplus amount where each owner is required to authorize the use of their refund for the new special levy. The complication of this solution is what happens when an owner does not authorize their refund to be applied to the special levy? It will consume an extensive amount of administrative time to process the refund and approvals.

The complication that arises for sellers is they are longer owners; therefore, any refunds are returned to the owner on title at the time the refund is payable. The dispute is now between the seller and the buyer.

Because the refund was reallocated, the seller could seek a claim against the buyer as there was a refund identified, and the buyer could file a claim against the strata corporation for not complying with the act.

One of the overriding problems with this scenario is the cause of the problem. The resolutions for this meeting were written by the property manager or someone within their company. Writing resolutions for corporations or associations while being compensated, is a practice of law. Strata councils constantly pressure managers, who are paid and contracted by the strata corporation, to write resolutions to avoid legal costs, placing the manager or their company at risk of discipline from the Law Society or a complaint with the Real Estate Council of B.C.

If your strata corporation is proposing a resolution that requires a three-quarters, 80-per-cent or unanimous vote, always seek legal advice first. Even a majority vote resolution that approves a significant depreciation report repair cost from your contingency reserve fund would be worth a legal opinion.

As a strata council, confirm you are proposing resolutions and bylaws that comply with the act, clearly define your objective and ensure you have the full scope of authority you require to act on behalf of the corporation.   

© 2019 Postmedia Network Inc.

Strata corporations must file a formal address

Thursday, August 8th, 2019

Strata councils must ensure they follow proper procedures when enforcing bylaws

Tony Gioventu
The Province

Every day hundreds of emails and calls are managed by Condominium Home Owners Association advisors from strata councils, property managers, owners, tenants, and commercial users. Most complaints relate to matters involving relationships and conflicts between occupants. Most of these issues are bylaw enforcement and may be easily managed by strata corporations; however, the nature of most strata councils is to often ignore the easy solutions until those matters become a costly and disruptive crisis in their community. Enforcing bylaws is not an option for strata corporations.

Strata corporations must have bylaws and must enforce their bylaws. How bylaws are enforced is optional and at the discretion of council. Bylaw enforcement could be as simple as a cordial warning letter that often resolves most infractions. Fining, penalizing or taking action through the Civil Resolution Tribunal (CRT) is optional, but when a strata council refuses to enforce bylaws the best option for owners and tenants is a Supreme Court action or an application to the CRT seeking a decision where the strata corporation is ordered to enforce the bylaws. Noise or nuisance are the most common complaints. Often inquiries begin with: “We live in a unit on the first floor and our strata council permitted an owner to install hardwood floors in our wood frame building on the second floor contrary to our bylaws. The noise is unbearable and our council will not enforce the bylaws.” The sequence that follows requires the affected owners to file court applications or a CRT complaint. Herein lies the problem.

Many strata corporations are not filing a formal address for the strata corporation as required by the Strata Property Act, resulting in default orders through the CRT. A strata corporation must ensure the correct mailing address for the strata corporation is filed in the land title office, and if the address changes — such as when a new property management company is hired — the corporation must file a change of address. Notice to the strata corporation may also be delivered to any council member or directly to the property manager, in the methods permitted by the Act.

Under the current CRT rules, amended April 1, 2019, the CRT now serves most respondents named in a Dispute Notice by regular mail. The Dispute Notice is deemed received 10 days after mailing in most circumstances. For strata corporations, this means the Dispute Notice is mailed to its most recent registered address filed at the Land Title Office. In the event the strata corporations’ registered address is incorrect or not filed and the CRT is not notified, it is likely that the dispute will proceed through the CRT’s default process and result in a default decision. Although the strata corporation is able to file a cancellation request after it is notified of a default decision against it, the strata corporation could avoid that process, and the possibility that its cancellation request is denied, by ensuring its registered address at the Land title Office is accurate.

The solution is simple. Confirm your strata corporation has filed a Form D, Strata Corporation Change of Mailing address in the Land Title Registry. If you are a smaller strata corporation, serve notice on all council members in the event there is no address filed. A print out of the General Index from the Land Title Registry will identify when your most recent address filing was completed. When a strata corporation is created, the official address is often filed by the developers’ lawyers identifying their offices. Once the first Annual General Meeting is held, file a change of address to ensure your strata corporation receives proper notice.

© 2019 Postmedia Network Inc.

Previous council’s action could justify a lawsuit

Thursday, August 1st, 2019

Council members install unauthorized structures

Tony Gioventu
The Province

Dear Tony:

Our strata corporation has just completed a three-year major upgrade and envelope renovation. We have been planning this project since 2010, and along with our reserves and small assessments, the outcome was well worth the effort. We are essentially back in a new building with a new look.

A matter has arisen that has many owners questioning the honesty of our past strata council. When the building was renovated it was agreed that 11 balcony enclosures would be removed and not be replaced as they were a significant maintenance and safety problem. As the project was nearing completion, four “sunrooms” were installed on the penthouse units, which belong to two council members. Our resolution specifically required the removal of all enclosures and no new installations. When questioned about this, the council members advised that they had been paid for by the council members and as they were sunrooms, and the previous internal walls had been removed, they were necessary.

We are a new council and two of four previous council members have since sold their units. In reviewing the final contracts to close out the special levy fund, the contractor and consultant provided us with detailed invoicing and the enclosures, not sunrooms, as described by the previous council, were paid for by the strata corporation at a cost of $35,000 each. There is no record of any payment to the strata corporation, and the contractors verified they did not receive payment from the owners.

Our council is struggling with what to do next. We have reported this to the corporation, and our owners want us to start a law suit against these individuals, but we are also worried about future liability and cost. Is it possible to sue past owners?

Denny J. — president of council

Dear Denny:

As in any dispute, the first recommendation is to contact the parties involved and offer them an opportunity to provide information to remedy the allegations. It is possible there was a payment and it was not applied to the correct account. If this does not resolve the matter seek legal advice on the options of pursuing the failure to disclose the financial benefit; failure to remove themselves from council while the decision regarding their unit enclosures was being made; and violating the decision of the owners’ approved resolutions.

Council members who act in their own interests and benefit financially on the shoulders of their fellow owners and then sell before they are discovered don’t simply clean the liability slate just because they no longer own the unit. Gather as much evidence as possible.

Contact the new owners and request copies of the property purchase disclosure statements and any other documentation provided to them by the vendors. Search for copies of building permits that detail permits for the enclosures and any work order changes or instructions provided to the consultants and contractors.

Council members have a defined standard of care under the Strata Property Act, and while they are held to the standard of a comparable volunteer, they are not immune to court action if they are dishonest. In exercising the powers and performing the duties of the strata corporation, each council member must (a) act honestly and in good faith with a view to the best interests of the strata corporation, and (b) exercise the care, diligence and skill of a reasonably prudent person in comparable circumstances.

A council member who has a direct or indirect interest in (a) a contract or transaction with the strata corporation, or (b) a matter that is or is to be the subject of consideration by the council, if that interest could result in the creation of a duty or interest that materially conflicts with that council member’s duty or interest as a council member, must (c) disclose fully and promptly to the council the nature and extent of the interest, (d) abstain from voting on the contract, transaction or matter, and (e) leave the council meeting (i) while the contract, transaction or matter is discussed, unless asked by council to be present to provide information, and (ii) while the council votes on the contract, transaction or matter.

An action against a past council member is not eligible for a strata dispute through the Civil Resolution Tribunal; however, in light of the values, the owners approval – by three quarters – at a general meeting for a Supreme Court action may be appropriate.

© 2019 Postmedia Network Inc.

Presence of birds may be a sign of significant problems

Thursday, July 25th, 2019

Beware: The presence of birds may be sign of significant problems

Tony Gioventu
The Province

Dear Tony:

Our building is 30 years old and we are under attack. The Flickers and woodpeckers have been boring holes into our stucco siding; we have blackbirds and swallows nesting in our eaves and within the siding, and we had a family of geese take up residence on our rooftop.

Our location is adjacent to a green belt, so we tend to be more exposed to critter invasions. Our owners would like to simply remove the nests and birds and close up the holes, but the council is refusing to do anything about this. Help! 

Cynthia F., Fraser Valley

Dear Cynthia:

Between the age of your property, the type of construction material and your location, I suspect your problems are much greater than bird invasions.

Flickers and woodpeckers are on the hunt for food. Boring into your stucco and siding is an indication of infestations. This is a common problem across the province and stucco siding is not immune. 

The starlings nesting in siding and eave crevices is a result of failed aging building cladding that has permitted their access. As for the geese, they just come with living in the Lower Mainland; however, large areas of rooftop ponding will attract more migratory birds to your rooftop.

Twenty percent of your owners may petition in writing for a special general meeting to address these issues and direct your council on next steps. A full building condition assessment would be a good starting place to plan for overdue upgrades and renewals.

Your strata corporation has an obligation to comply with the B.C. Wildlife Act as a private residential complex. Here is a quick summary of the B.C. Wildlife Protection act as it relates to birds and the possible implications.

Property in wildlife:  Ownership in all wildlife in British Columbia is vested in the government.

Endangered and threatened species: If the lieutenant-governor in council considers that a species of wildlife is threatened with imminent extinction throughout all or a significant portion of its range, or if the factors affecting its vulnerability are not reversed, in British Columbia the lieutenant-governor in council may, by regulation, designate the species as an endangered species.

Right of action: The government has a right of action against a person who, without authority, destroys or damages wildlife habitat in a wildlife management area or an area set apart for wildlife management and may recover damages from the person for any money that the government spends to restore the habitat and its wildlife to its original state, or the loss of the habitat and its wildlife if restoration of the wildlife habitat is impossible.

Birds, nests and eggs: A person commits an offence if the person, except as provided by regulation, possesses, takes, injures, molests or destroys (a) a bird or its egg, (b) the nest of an eagle, peregrine falcon, gyrfalcon, osprey, heron or burrowing owl, or (c) the nest of a bird not referred to in paragraph (b) when the nest is occupied by a bird or its egg. The above offences may result in fines or penalties and the recovery of cost for the restoration of habitat.

Dangerous wildlife protection order: “private dwelling” means a structure used solely as a private residence or a residential accommodation within any other structure. If a conservation officer believes on reasonable grounds that dangerous wildlife is or may be attracted to any land or premises other than a private dwelling, the conservation officer may, without a warrant, enter and search the land or premises. If a conservation officer believes on reasonable grounds that the existence or location of an attractant in, on or about any land or premises, other than in a private dwelling, poses a risk to the safety of any person because the attractant is attracting or could attract dangerous wildlife to the land or premises, the conservation officer may issue a dangerous wildlife protection order directing an owner, occupier or person in charge of that land or premises to contain, move or remove the attractant within a reasonable period of time specified in the order. Before you remove any species, go to: http://www.env.gov.bc.ca/lower-mainland/wildlife/management/wildlife_management.htm

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Council goes against strata act

Thursday, July 18th, 2019

Council defied strata act with cameras

Tony Gioventu
The Province

Dear Tony:

Our strata council has just purchased and installed eight cameras in our main entry, and parking entry to try and address a growing security problem in our community.

At first, council refused to disclose how much was paid for the cameras and monitoring service or any of the details of the monitoring. However, after a group of our owners demanded a hearing and challenged council on its actions, it disclosed the total cost of the equipment purchased is $11,000, and it signed a service agreement for $2,000 a year for five years. 

We were told that because the funds came from a surplus account, council did not require the approval of the strata owners.

The details of all of these contracts are still being challenged, but generally, our owners are very unhappy with this action and want to know what our options are. 

Candice K.  

Dear Candice:

Your strata council has acted contrary to the Strata Property Act and the Personal Information Protection Act.

Before your strata activates your system, it must convene a special general meeting to seek the approval of the owners or determine the next actions. Whenever a strata corporation acquires or disposes of personal property that exceeds $1,000 in market value, it is required to first obtain a three-quarters vote of the owners at a properly convened annual or special general meeting. This amount may be increased if a strata corporation amends its bylaws approving a greater amount.

As the value of the surveillance cameras and equipment exceeds the authorized amount, your strata council was required to convene a general meeting of the owners to approve the expense, regardless of which account or fund this money was drawn from. 

The other violation that must be addressed is the action of conducting surveillance. If a strata corporation intends on conducting surveillance through video monitoring, FOBS or other tracking systems, it requires the consent of the owners of the corporation. This is approved through a bylaw and the bylaw requirements are set out by the Personal Information Protection Act.

The office of the privacy commissioner provides an excellent guide for setting up a privacy policy and surveillance bylaw.  

Generally, a strata corporation’s privacy policy or policies should address the following:

  • The only purposes for which the personal information collected by the video surveillance system and/or access control system will be used;
  • Who is authorized to view the surveillance footage or access control records and under what circumstances;
  • The location of video surveillance cameras. (They should not be positioned, internally or externally, to monitor areas beyond the strata corporation property or capture images peripherally or directly through the windows of adjacent strata buildings. Video equipment should not monitor areas where owners, tenants, visitors and employees have a reasonable expectation of privacy, such as change rooms and washrooms);
  • The times when the cameras will be operating;
  • The length of time the video recordings and access control records will be retained;
  • How the video surveillance records and access control records will be securely stored and destroyed;
  • How the strata corporation will respond to requests under PIPA for access to the personal information contained in video surveillance records or access control records;
  • How owners, tenants and visitors will be given notice that the premises are being monitored by video surveillance; and
  • How owners will be given notice that their movements may be monitored by the key fob system. 

Download a copy of the guide and consult with a lawyer on setting up a privacy and surveillance bylaw. Go to: opic.bc.ca or for a direct copy of the guide: https://www.oipc.bc.ca/guidance-documents/1455

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