Bylaws deemed unenforceable
Tony Gioventu
other
Dear Tony:
I have owned my strata lot in East Vancouver for 22 years. In September, I received a notice from my strata council that I had altered my balcony without written permission, and unless I was prepared to have the alteration removed, I would be fined $200 a week.
I responded it has always been this way and if altered, it was done before I purchased. Council responded that it didn’t matter as it was my balcony and started fining me.
To make matters worse, our strata has a bylaw that authorizes council to receive monies paid for any item to be first applied to outstanding fines and penalties, and within two months it had forced me into arrears and filed a lien against my strata lot. I have just received a notice of order for sale if I don’t pay the back fees, fines, lien costs, legal fees and the balcony corrections.
How is this even enforceable? Nothing has changed in 22 years.
Elizabeth P.
Dear Elizabeth:
The funds collected for strata fees or special levies must be applied to strata fees and special levies.
In a recent court decision, Strata BCS 3648 vs Podwinski and the Royal Bank, the judge determined such a bylaw is invalid because it would prevent an owner from stipulating that fees are being paid and that fines are not.
This type of bylaw denies the owner the right to challenge the bylaw enforcement decision, which includes an application to the Supreme Court of B.C., arbitration or an application to the Civil Resolution Tribunal.
Because the owner had paid the strata fees within the terms of a pre-authorized payment form — now common for most strata-fee payments — the strata corporation accepted the monies on only that basis.
The judge rejected the strata corporation’s argument the terms of the bylaw override the terms of the pre-authorized payment form.
Strata corporations who have adopted payment diversion bylaws will be faced with similar challenges and should seek legal advice on enforcement or amending them as owners can now use the Civil Resolution Tribunal (www.civilresolutionbc.ca) to quickly file a claim to challenge the bylaw.
Under the CRT, owners and tenants can challenge whether a bylaw is: legally enforceable, whether it was passed or filed correctly and whether it has been enforced fairly. The application process is on line, inexpensive and the matter is resolved in a few months with a binding decision or settlement.
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