There are several options to repay an annual deficit

Tony Gioventu
The Province

Dear Tony:

Our strata corporation recently approved a special levy at our annual meeting to pay for a deficit of $37,000 from 2019 overruns. The resolution required three equal payments: March, April and May. 

At the meeting, several owners objected to the resolution as the payments were due in a short period of time and the fee of $10 to collect the levy was added to each payment. When questioned, the property manager admitted to writing the resolution and advising council the act required the deficit had to be repaid in the next fiscal year and this was the only option. 

The owners at the meeting agreed to amend the resolution and spread the payments out over six months.

We have now received notice of a new schedule of payments with a $10 addition to each of the six payments. Are there other options to paying for a deficit that does not impose additional collection fees on the owners?

Claire Lesley, Burnaby

Dear Claire:

When a strata corporation is left with a deficit at the end of its fiscal year, the Strata Property Act permits three options to repay that amount. A special levy is not the only option, but it is the option that permits the management company to charge an additional fee. 

The first option is to add a line item to the agenda of the next year’s budget to repay the deficit. This does not incur any fees for special levies; it is paid over 12 months, and requires only a majority vote for approval. While this does increase the strata fees for the next year, it is the best payment method because of the least cost and approval requirements.

The other two options require a three-quarters vote resolution approval. The strata corporation may approve a special levy, and depending on your service agreement with your management company, there may be charges for the collection of the special levies. This is charge paid by the strata corporation, not by each individual owner and is a common expense based on unit entitlement the same as the deficit amount being levied.

The management company does not have the authority to charge owners directly for their fees or services for collections of special levies. This additional amount is included in the special levy to pay the deficit. The special levy schedule must be reissued and is based only on the total amount approved by the owners at the meeting.

A third option is for the strata corporation to approve a one-time payment from the contingency reserve account to cover the deficit. While there is no immediate impact on the owners, it will result in the depletion of valuable savings for future renewals or emergencies.  

While deficits occur for strata corporations due to insurance deductibles or emergencies, the cause of the expense is also important to identify. In Lesley’s strata corporation, over $40,000 of emergency expenses for a deck leak and repair were allocated to their operating fund, while they have over $250,000 in their contingency fund. 

Emergency expenses may be allocated from either the operating fund or the contingency reserve fund.  How the funds are allocated is a decision of the strata council.

If you are an active strata council member, take a direct interest in your monthly operations and expenses.  While it is not mandatory, an emergency expense can be replenished to the contingency fund simply by approving by majority vote a higher contribution in the following year’s budget, eliminating the need for special levies. 

People who are not licensed legal professionals, such as strata managers and consultants, and who are compensated for their services, are not permitted to write resolutions or bylaws for strata corporations as this is defined as a practice of law under the Legal Professions Act in B.C.

© 2020 Postmedia Network Inc.

Strata removed secret ballots from bylaws

Tony Gioventu
The Province

Dear Tony:

In August, we held a third special general meeting to approve a special levy to replace the piping in our 30-year-old building.

Once again, an owner showed up with enough proxies — 28 — to defeat the special levy. She always demands a secret ballot and we have no way of controlling how she votes.

We have held several information meetings with owners since and have discovered several owners instructed the proxy holder to vote in favour of the special levy; however, we have no way of verifying the results because of the secret ballots. 

Our strata received a letter from our insurance broker last week advising that they could not renew our insurance as the strata corporation had we not approved the plumbing project. We have secured a temporary 30-day-renewal extension, but it is subject to the strata corporation approving the piping project in January and commencing work no later than May 1. 

How do we deal with the owner who is clearly attempting once again to control the meeting and vote down the repairs?

Karen J., North Vancouver

Dear Karen:

Despite the efforts of one person to undermine your efforts to deal with your maintenance and renewal issues, there are other options available to address the voting imbalance.

A controlling proxy holder is relying on owners being uninformed and isolated from the implications of the decisions. While the Schedule of Standard Bylaws of the Strata Property Act requires a secret ballot if an eligible voter requests a secret ballot, your strata corporation bylaws were amended in 2015, and the provision for a secret ballot was removed. 

Your voting is conducted either by a show of voting cards, or if a precise count is requested, it is the decision of the chairperson to determine the method of voting. In your bylaws, it is either by ballot, polled ballot or a call of the roll. 

A strata corporation has no control over a proxy holder’s actions. Disruptive proxy holders often demand secret ballots to hide behind the anonymous collection of paper ballots where they can vote at their own discretion, regardless of the instructions on the proxy. 

By polling the ballot, each strata lot is identified on each ballot, and the results of the votes of each strata lot present in person or by proxy are recorded in the minutes. By calling the roll, each strata lot present in person or by proxy, is called, requested how they vote, and the result of each strata lot vote is recorded in the minutes.

While nothing prevents the proxy holder from acting contrary to an owner’s instructions, it does record the outcome of each vote and forces the proxy holder to disclose their decisions. The result often ensures the success of the corporation. 

For contentious meetings that may result in interpretation of the act or your bylaws or the effects of a failed resolution, it is well worth the investment to have your strata lawyer present to advise the owners. 

When a strata corporation is unable to obtain the owner approval for necessary funding for maintenance and renewals, there are several other options available. Under the act, if  a resolution is proposed to approve a special levy to raise money for the maintenance or repair of common property or common assets that is necessary to ensure safety or to prevent significant loss or damage, whether physical or otherwise, and the number of votes cast in favour of the resolution is more than half of the votes cast on the resolution but less than the three-quarters vote required under the act, the strata corporation (council) may make an application to the Supreme Court of B.C. to order the repairs. This is a method frequently employed by strata corporations to proceed with repairs.

If your insurance provider has indicated a risk of insurance cancellation, it is likely sufficient evidence to make an application. 

Likewise, if a strata corporation has a depreciation report, and the report recommends the repairs, the strata corporation requires only a majority vote to approve a project as a contingency expense. If your contingency fund does not have enough money to cover the cost, it is only a majority vote as part of your annual general meeting when you approve the annual budget, your owners by majority vote may approve any amount to be contributed to your contingency fund. While this takes a year or two of planning, if you are anticipating a major project in the future, it is a viable option to consider. 

A valuable tool for major repairs and funding is to maintain an ongoing five-year plan of upcoming projects. Five years will provide any community with sufficient advance time to consider funding and repair options.

© 2020 Postmedia Network Inc.

Put safety first and be mindful of others during holidays

Tony Gioventu
The Province

Dear Tony:

Our strata corporation has been having the “ban live-cut Christmas trees” debate for several years, without much success. Every year, there is at least one owner or tenant who abandons their dead tree in the parking garage or rams it down the garbage chute or tosses it off their balcony into our landscaping or drags it through a hallway leaving a trail of needles in the carpets.  

Our cameras only capture the front entry of our building and the suspected culprits always mysteriously remain unidentified. How can we best encourage our owners to support our bylaws that would prohibit live trees for holidays and festivals?  

Kyra Browning, Surrey

Dear Kyra:

Holiday decorations are a wonderful way to brighten up the dark winter months and to celebrate festivals year round, but they do come with liabilities.

Live trees still capture our nostalgic celebration of Christmas, and yet they also come with the dangers of increased fire risk, damaging building common areas, pest infestations (always a treat when the bugs hatch), and increased maintenance.

Even if your owners adopt a bylaw that prohibits live trees, don’t be surprised to find a few owners who still smuggle in live trees during the late night hours.

In many situations, a good dose of resident awareness may solve your problems. A seasonal flyer will encourage owners to properly care for their trees, tell them how to reduce fire hazards and provide locations of when and how to recycle their trees. A complimentary tree bag also encourages everyone to seal their trees before they drag them through the common areas.

In addition to trees, attention should be paid to exterior decorations if they are permitted, such as lights or displays. Strings of lights stapled to a building exterior may result in far more damage than a dried old tree dragging down your hallways.  

While the displays and lights seem like a good idea, not everyone in your complex may share the same beliefs. Be open minded about supporting other festivals through the year and avoid restricting your bylaws to the Christmas season. If you decorate your common areas or lobby for the Christmas season, consider the traditions of all residents and how they wish to celebrate their holidays.  

There are also activities associated with new year celebrations and festivals to be considered. Fireworks and firecrackers also increase the risk of fire, and may result in noise that is a nuisance to residents and a harm to pets. Lighting fireworks off a rooftop deck or a balcony is just a bad idea.  

After the recent Halloween season of fireworks disasters, several townhouse complexes have now adopted a ban on any types of fireworks, firecrackers or sparklers within a strata lot or on the common property.  

Living in a strata corporation comes with the routine noises and disruptions of everyone sharing the same common facilities and walls. The traditional countdown party to New Year’s Eve is anticipated, but the party that is raucous until 4 a.m. is a nuisance.  

In a strata corporation, your home is not your castle, but it is a great living experience for many of us who understand that our activities and behaviours need to be tempered with consideration and respect for our neighbours.

A safe holiday season to all.  

© 2019 Postmedia Network Inc.

A complete building commissioning best for strata budgeting

Tony Gioventu
The Province

Dear Tony:

I am on the first strata council of a new building in Metro Vancouver and we are having some challenges trying to determine our obligations. We have a management company that is helping us set up the operations, but we don’t have any type of master plan of operations.

Who would normally set this up? Do we hire a consultant or can we expect our manager to set up an operations plan? We are concerned that we might be missing obligations that could result in building systems being affected or risk our warranty.

Carol Myers

Dear Carol:

To ensure your strata corporation is properly budgeting for operations and administering the common property and common assets through a management plan, a best practice is to start with a complete building commissioning. 

You are absolutely correct: it is critical to establish a complete operations plan to ensure your assets are maintained and inspected on a routine basis, and for any defects or building claims to be properly documented for your strata corporation to file warranty claims. 

When a new building is completed, the owner developer at the first annual general meeting — which in your case occurred three months after the first unit was occupied — must transfer to your strata corporation:

(a) a complete list of names and addresses of all contractors, subcontractors and persons who supplied labour or materials to the project, as required by the regulations;

(b) manuals, warranties, plans that were required to obtain a building permit and any amendments to the building permit plans that were filed with the issuer of the building permit;

(c) any document in the owner developer’s possession that indicates the location of a pipe, wire, cable, chute, duct or other facility for the passage or provision of systems or services, if the owner developer has reason to believe that the pipe, wire, cable, chute, duct or other facility is not located as shown on a plan or plan amendment filed with the issuer of the building permit;

(d) all contracts entered into by or on behalf of the strata corporation;

(e) and all records required by the corporation under the act and the regulations. 

An inventory of the records provided by the developer is a good place to start, and a website for your strata corporation to host all of these records will be valuable for your strata corporation, your manager, contractors and service suppliers. 

When a building is commissioned, a complete inventory of all services and facilities is established, along with the service requirements and inspections. Everything that is an obligation of the strata corporation to maintain and repair is identified. This will include mechanical equipment, such as elevators, heating and ventilation blowers, fire safety systems, water-pump circulation systems, drainage systems, hydro/geo thermal systems, heating and air conditioning, sump pumps, security and door entry systems, roofing drainage and access and emergency back-up generators. 

This is best done by an experienced building consultant who understands how these systems operate and the best practices for maintenance and inspection. The consultant will create a vital inventory along with your service obligations, which are valuable for the development of depreciation reports and to quickly identify any deficiencies. 

Working closely with the owner developer/contractor is also a valuable exercise as they retain the intimate knowledge of how your building was constructed. 

Once you have completed a building commissioning, a proactive operations plan ensures your building performs to its best energy and service levels, will reduce the risk of insurance claims or equipment losses, and protects your owners’ investments.  

The greatest challenge many strata corporations face? They don’t know what to repair or maintain if they don’t have an inventory that itemizes all common components and the annual duties for maintenance and repairs.  

© 2019 Postmedia Network Inc.

Premiums and deductibles have increased substantially

Tony Gioventu
The Province

Over the past few months across B.C. there has been an industry struggle to renew strata corporation insurance polices. With renewals, the cost of the insurance has increased anywhere from 50 to 300 per cent and the deductibles to cover claims have also increased substantially, from rates of $25,000 per claim to as high as $250,000 and $500,000.

While not all regions of the province have been affected in the same manner, there have been targeted building types or large strata communities across B.C. that have seen the dramatic increase.

British Columbia has over 30,000 strata corporations, which vary from a duplex to over 1,000 units in a single strata community. Many conventional strata corporations are low-rise wood-frame apartment buildings, townhouses or highrise buildings.

When a water failure or fire occurs in multi-unit buildings, multiple units are often affected. The result is an increased risk of cost for damages and losses by the insurance industry.

Under the Strata Property Act, a strata corporation must insure for full replacement value of all common property, common assets and fixtures. This basically means in a duplex, townhouse, low rise or highrise community, the original construction, including finishing attached to the building, is covered under the strata corporation insurance policy.

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What is the cause of the dramatic increases?

In addition to worldwide catastrophes, we live in a high-risk earthquake zone, and with several major building claims in the province, there are a reduced number of insurance companies that are covering strata insurance in B.C. The hardest-hit regions are the high-density metro areas, but resort properties and communities with large developments of more than 250 units are also feeling the crunch as they have the highest compound risks when there is a claim.

In addition, with a limited number of insurers, increase in claims, higher property and construction values and a high demand for insurance, a supply/demand imbalance has been created where the insurers have imposed much higher costs and deductibles to manage risks.

How does this impact owners of strata units in B.C.?

If your strata is faced with a substantial increase in insurance rates, the cost will be reflected in your annual budget, which determines your annual strata fees. If the deductible is dramatically increased to $100,000, for example, it means any claims under $100,000 are not covered by insurance and subject to your bylaws, each owner is likely responsible for damages to their strata lot and the corporation is responsible for the cost to repair common property. The result is many of the past insurance costs will now be downloaded onto the affected owners in the event of a claim.

If an owner is responsible for a claim — for example, their washing machine hose fails, flooding out the building — the owner could be responsible for the $100,000 deductible.

This time, more than ever, homeowners need to consider condo home owner insurance to cover their liability in the event of a claim for damages to their unit, the cost of a deductible or the risk of being sued by other owners if they cause a claim. If there is a claim from a failed pipe and the amount of the claim is over $100,000, resulting in an insurance claim, the $100,000 deductible becomes a common expense of the strata and the council may pay it from the contingency fund or directly levy owners without the need for a three-quarters vote at a general meeting.

What can our strata do to limit the risk?

Work closely with your broker. If the strata corporation is faced with a change in insurance or the possibility of no coverage, immediately give notice to owners. If you fail to obtain insurance, contact your lawyer to determine the liabilities for owners and council members and what next steps you should consider.

Maintain your buildings. Work with your owners to manage risks. Verifying that all units with washing machines have upgraded their hoses to braided steel. Failed rubber hoses in cramped closets and spaces are a chronic cause of water damages.

Address risks that may result in a claim. Smoking, barbecues on balconies, balcony gas heaters and in-suite hot water tanks all present a higher risk. Repair access or building issues that may risk an injury.

Update your bylaws. Bylaws that present a risk of human rights complaints or court actions also increase your risk.

What should buyers consider 

Before you purchase, obtain a copy of the strata insurance and confirm the insurance cost, deductibles for water escape, and the renewal dates. Over the coming year, the increases will likely continue.

© 2019 Postmedia Network Inc.

Get quotes and qualifications for major repairs

Tony Gioventu
The Province

Dear Tony:

Is there anything in the Strata Act or legislation that requires a strata council to get three bids for projects of a certain value?

Our strata council is negotiating with a contractor to replace our siding and our decks and several owners are raising concerns about the price and the reputation of the contractor. From what we can see, it looks like basically a blank cheque with no real understanding of what is going to be done.   

It’s one thing to call in a contractor to replace a broken window or a hot water tank or a broken entry door, but removing our siding and replacing decks that are over other living spaces may have grave consequences if there is a problem. 

Asiz M., North Vancouver

Dear Asiz:

One of the benefits of living in a strata corporation is the collective power of purchasing and negotiations. If the purchasing process is administered well, the community can look forward to secure pricing, confidence in the construction and contingencies that address potential risks and problems before they occur. 

Strata councils are volunteers and are generally held to that standard of a comparable volunteer under the same circumstances in the legislation.

This does not excuse the responsibility of a volunteer to ensure they have sought advice and counselling on their actions and decisions. The B.C. lottery slogan — “Know your limit, play within it” — applies to many facets of life. Purchasing and negotiating contracts and services is a perfect example.

There are few strata council members who have sufficient knowledge and experience relating to procurements and negotiations of major construction. While there is nothing within legislation that requires multiple bids on projects within strata corporations, a prudent council member will acknowledge they have an obligation to obtain the optimum pricing for the best services with the all of the terms and conditions of the contractor and services clearly defined.

It is a small investment to retain a consultant to set the specifications identifying the scope of work, and consult a lawyer before you issue the project for bids.  

If your community is considering construction, the value may be the only factor that determines the scope of services you require. Seeking multiple bids on a project is only reliable if there are published specifications of the scope of work and terms and conditions of the contract. At least all contractors are bidding on the same project.

For major construction such as decks, siding, balconies, windows and roofing, a consultant is always recommended to ensure the project is detailed, construction is inspected and the strata corporation is not left with a construction disaster, endless expenses or a contractor who leaves a site before the project is complete.

The moment a contractor informs you they are not interested in the work if they have to compete with other contractors and bid on a scope of work, it is apparent their intentions are not credible.

Strata councils routinely comment they had not budgeted funds for a consultant or legal services, yet we often don’t know the cost of construction until we have completed the bidding process, so how did they reach a budget amount in the first place?

Before your strata council starts a major project, determine the cost of a consultant to set up your specifications. This will help you budget for professional services in the coming year. The cost varies depending on the scope of work, condition of buildings, and the amount of supervision that may be required as the project proceeds.

Next, consult your lawyer on the bidding process. Are the bidding documents sufficient? Is bonding insurance required for the scope of the project? Are the terms and conditions sufficient? How is the value determined? Are there cost allocations for unknown conditions, such as rotting wood? Are there specific site conditions that require details?

If you don’t secure terms and conditions in the bidding process, it becomes difficult to negotiate in a contract and impossible and costly to correct after a contract is signed. 

© 2019 Postmedia Network Inc.

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.

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.

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.

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.

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