Owners buying into a strata corporation for first time (or even their fourth time) are often unsure about what power the strata corporation has over their home and their lives. Some strata councils are even unsure. The answer, in short, is that they have quite a bit of control over owners, their home and how they live their lives. S.119 of the Strata Property Act (“SPA”) permits a strata corporation to pass bylaws regarding “the control, management, maintenance, use and enjoyment of the strata lots, common property and common assets of the strata corporation and for the administration of the strata corporation”. That control is, of course, necessary given the nature of strata living. As has been said in one case; “the general rule under the SPA is that within a strata corporation "you are all in it together". This means that no one can have complete freedom to so whatever they wish.
There are certain limitations under the SPA to the strata corporation’s powers. Those are in the form of certain grandfathering protections or exemptions written into the legislation (some of which are discussed out below) and the “oppression remedy” provisions of s.164 of the SPA which allows intervention where a decision or action is “significantly unfair” to an owner or tenant.
Some of the more common topics about which the broader question is asked are discussed below.
… tell me I can’t smoke?
Yes, strata corporations are allowed to ban smoking on the common property, the limited common property and even within strata lots. (In fact, the Tobacco and Vapour Products Control Act and certain municipal bylaws require strata corporations to enact certain restrictions). A “no smoking bylaw” was upheld by the court in The Owners, Strata Plan NW1815 v. Aradi 2016 BCSC 105, and the owner was ordered not to smoke in his strata lot.
In fact, strata corporations are often required to address complaints regarding second hand smoke where an owner has a medical condition which is exacerbated by that smoke. There is an ever increasing trend toward holding strata corporations accountable in the accommodation of owners with disabilities, such as asthma, that are aggravated by second hand smoke - see Perron v Strata Plan NW 164, 2009 BCHRT 59 and Leary v Strata Plan VR1001, 2016 BCHRT 139.
Strata corporations even have the power to stop someone from smoking medical marijuana where they have not proven that is the only means by which they can consume marijuana - The Owners, Strata Plan LMS 2900 v. Hardy 2016 BCCRT 1. However, without properly drafted bylaws strata corporations may not have the ability to prevent owners from smoking marijuana once it is decriminalized.
… tell me who I can allow to live in my strata lot?
The SPA specifically allows strata corporations to pass bylaws restricting or prohibiting the rental of strata lots and setting a minimum age for those persons who live in a strata lot; whether they be owners, tenants or occupants.
However, owners are afforded some protections by the SPA. With respect to rentals, s.143(1) delays the application of a rental bylaw where an owner is already renting their strata lot when the bylaws is passed. S.142 of the SPA permits an owner to rent to a “family member”; which is a very narrow class of persons defined by the regulations. S.143(2) of the SPA exempts certain classes of owners, based on the terms of the Rental Disclosure Statement filed by the developer, from the application of a rental restriction bylaw.
While s.123(1.1) of the SPA permits the strata corporation to pass an age bylaw, it is s.123(2) that grandfathers people living in the strata lot when such a bylaw is passed. However, that grandfathering is personal to an individual, not to the strata lot. Such bylaws can refer to any age whether it be 19, 45, 55 or some other number.
Bylaws restricting strata lots to single family use have been upheld by the courts in Ontario and B.C.; often to prohibit short term accommodation use.
… limit the number and type of pets I can have?
Subject to certain exemptions, strata corporations can pass bylaws that “provide for the control, management, maintenance, use and enjoyment of the strata lots”. That includes bylaws relating to pets, both in terms of number, type and their behaviour.
The Standard Bylaws restrict pets to one dog, one cat, two birds and reasonable number of fish and small caged mammals. Where a strata corporation enacts a more restrictive bylaw, s.123(1) of the SPA grandfathers any pet living in the strata lot (not the right to have a pet) at the time the bylaw is passed. Once the pet dies it cannot be replaced.
Owners, tenants and occupants with a certified guide or service dog are exempt under s.123(1.01) of the SPA from any bylaw that restricts or limits pets. This even includes retired guide and service dogs living with their owner. Persons who don’t have a certified guide or service dog, but need a dog, cat or other type of pet for medical reasons can request an exemption from the bylaw under the Human Rights Code. However, they must be able to prove a nexus between their disability and the need for a pet - Judd v. Strata Plan LMS737 2010 BCHRT 276. Wanting a pet because it would be “nice” is not sufficient (even if one’s doctor puts that same sentiment on a prescription pad).
… make me pay for an insurance deductible?
Where a claim is made against the strata corporation’s insurance policy, a deductible will be payable. Typically that deductible is paid by the strata corporation as contemplated in s.158(1) of the SPA. However, strata corporations often look to the owner of the strata lot from which the damage originated to pay the deductible. Section 158(2) allows the strata corporation to do so where “the owner is responsible for the loss or damage that gave raise to the claim.” In Strata Plan KA1019 v. Keiran 2007 BCSC 727 and Strata Plan LMS 2835 v. Mari 2007 BCSC 740 the court imposed a strict liability approach to “responsible”. In short, if the cause of the damage originated within the strata lot, the owner of that strata lot will be required to pay the deductible even if there was nothing the owner could have done to prevent it.
However, some strata corporations enact bylaws that establish a different standard from the responsible standard under s.158(2). Those bylaws often refer to terms such as “negligence” or “omission”. Where the bylaws do so, that different standard will be deemed to apply – Strata Plan LMS2446 v. Morrison 2011 BCPC 519; The Owners, Strata Plan VR194 v. MacKinnon 2017 BCCRT 46. In such a case, the strata corporation is then required to prove what the owner failed to do in order to charge the deductible to them. It is a harder test to meet than simply identifying the source of the water (using a common example).
Owners and strata corporations who are unsure about the powers of a strata corporation in these or any other situation should seek advice from a lawyer experienced in these areas.
This article is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is lawyer whose practice focuses on strata property law. He frequently writes and lectures for strata associations. He is a partner with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or email@example.com. He can be followed on Twitter @stratashawn.