One of the most stressful and contentious responsibilities of a Strata Council is the enforcement of strata bylaws and rules. While some conflict and tension will always exist within self managed communities, understanding and respecting the rights of Owners and duties of Strata Councils throughout the enforcement process can help to prevent costly and stressful community breakdown.
Strata Councils can help to build strong and cohesive communities through thoughtful, fair and even handed governance. It is important for Strata Councils to be judicious and respectful throughout the bylaw and rule enforcement process. Strata Owners need to feel that they are being treated with fairly, Complainants need to feel that they have been heard, and Strata Councils have the difficult task of balancing community needs and engaging in enforcement actions against neighbours.
The bylaw and rule enforcement process can be broken down as follows:
- Warning or Opportunity to Comply with Bylaws and Rules (optional)
- Choice of Enforcement
- Notice of Enforcement
- Right of Owner or Tenant to Respond
- Decision of Strata Council
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Complaint: What Triggers a Warning or Enforcement Action?
When the Strata Council receives a complaint from an owner about another owner, tenant, occupant or visitor breaching a bylaw or rule, or if the Strata Council learns through other means that a bylaw or rule may have been breached, the Strata Council has a duty to review the matter. Upon review, if it appears that a bylaw or rule has been breached, the Strata Council has several options.
Warning or Opportunity to Comply with Bylaws and Rules: Does a Strata Council Have to Act?
Under the Strata Property Act, the Strata Council can choose to give the Owner responsible for the breach of the bylaw or rule a warning. The Strata Council can also give the Owner time to comply with the bylaw or rule without penalty. 1
Choice of Enforcement: Fine, Remedy of Contravention or Denial of Access to Recreational Facilities?
If an owner, tenant, occupant or visitor doesn’t heed a warning from the Strata Council, if the Owner fails to remedy the breach within the time period provided by the Strata Council, or if the Strata Council has chosen to move directly to enforcement, the Strata Council has three enforcement options at its disposal under section 129 of the Strata Property Act. These are:
The Strata Council can levy a fine against an owner. The maximum fine must be outlined in the Strata Corporation’s bylaws. If not, then the maximum fines in the Strata Property Act Schedule of Standard Bylaws will apply. 2 See the post on Maximum Fines for Breaking Strata Bylaws and Rules for more information about fines.
- Strata Corporation to Remedy Contravention
The Strata Corporation may do what is reasonably necessary to remedy a bylaw or rule contravention, including removing objects from common property and assets, repairing common property and common assets or doing work on a strata lot . The Strata Corporation can require that reasonable costs for taking such action be paid by the owner responsible for the breach of the bylaw or rule. 3
- Deny Access to Recreational Facilities
If the bylaw or rule breach involves the use of recreational common property or common assets, the Strata Council can deny access to the recreational facility for a reasonable amount of time. This denial of access cannot be permanent. 4
Notice of Enforcement: What Must be Included?
[ba-pullquote align="right"]Generally, providing owners with 7 to 14 days to respond will be considered reasonable.[/ba-pullquote]Once the Strata Council has chosen the enforcement mechanism it will use, the Strata Council must give notice to the Owner of the strata lot. This notice must contain the particulars of the violation, including the bylaw or rule that is the source of the complaint, as well as the enforcement steps that will be taken by the Strata Council.
When delivering notice to the Owner about a complaint, be sure to outline the Owner’s right to respond and provide the Owner with simple, clear and concise instructions. The notice must also include a reasonable period of time for the Owner to respond before fines or other enforcement tools are used.
Right of Owner or Tenant to Respond: Justice Requires an Opportunity to Respond
The Owner of the strata lot must be given a reasonable opportunity answer the complaint, including a hearing before council if requested. If the strata lot is being occupied by a Tenant, he or she must be afforded the same opportunity.
If the Owner or Tenant has answered the complaint in written form, then the Strata Council must consider this response and decide whether or not to take enforcement proceedings as outlined in the original notice. If the Owner or Tenant has requested a hearing, the Strata Council must provide the owner or tenant with an opportunity to present their case to the Strata Council in person.
Decision of Strata Council: Provide Fair, Justifiable Reasons
The Strata Council should avoid rushing to judgement. If an Owner feels that they are presumed guilty until proven innocent, their sense of justice, governance and community will erode.
Once the strata council has reached a final decision on the complaint, it must provide a written decision to the Owner. This decision should state whether the Strata Council continues to find the Owner or Tenant in breach and if it will continue with the enforcement action outlined in the original notice.
If possible, the Strata Council should outline its reasoning in the its final decision. By explaining how the Strata Council reached its decision, the Owner and Complainant are more likely to accept the decision and feel heard. Additionally, should the owner or complainant challenge the decision through arbitration or the courts, the written reasons will provide evidence of thoughtful and reasonable review.
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Currently, under the Strata Property Act, strata councils have significantly more power than most owners. If an owner disagrees with a decision of the strata council, his or her only remedy is to pursue costly arbitration or petition the Supreme Court. Should such an action be launched by an owner, the Strata Council can muster and use the resources of the community to defend its decision.
On May 31, 2012, Bill 44 received royal assent, creating the Civil Resolution Tribunal Act and consequential amendments to a number of statutes, including the Strata Property Act. Once this legislation is brought into force in the near future, strata owners will have a new “small claims” mechanism to challenge the decisions of their Strata Councils. As tools to challenge Strata Council decisions become more accessible to owners, practicing good governance will save Strata Councils valuable time and resources. For more information on Bill 44, see my recent post about it here.
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