BYLAWS. Prepared and presented by: Adrienne M. Murray Hammerberg Lawyers LLP. Tel:

Transcription

1 BYLAWS Prepared and presented by: Adrienne M. Murray Hammerberg Lawyers LLP Tel:

2 Bylaws The bylaws may provide for 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 (s. 119)

3 Purpose of Bylaws Bylaws establish the standards for the community in which you live Bylaws can be used to address issues to prevent future disputes and problems Bylaws should reflect the unique needs and circumstances of the owners and the Strata Corporation Bylaws provide the authority to the strata council/corporation to operate and regulate its activities

4 Standard Bylaws vs. Amended Bylaws The bylaws of the Strata Corporation are the Standard Bylaws except to the extent that different bylaws are filed in the land title office (s. 120) The bylaws of a Strata Corporation may be changed, repealed, replaced, added to or otherwise amended by complying with the requirements of this Division (s. 126)

5 Restrictions on Bylaws A bylaw is not enforceable to the extent that it: (a) contravenes this Act, the regulations, the Human Rights Code or any other enactment or law (b) destroys or modifies an easement created under section 69 or (c) prohibits or restricts the right of an owner of a strata lot to freely sell, lease, mortgage or otherwise dispose of the strata lot or an interest in the strata lot with the following exceptions:

6 Restrictions on Bylaws a) a bylaw under 141 that prohibits or limits rentals b) a bylaw under 122 relating to the sale of a strata lot c) a bylaw restricting the age of persons who may reside in a strata lot: occupancy (s. 121)

7 Limitations on Bylaws Sale of a May not prohibit or unreasonably strata lot restrict the activities relating to the sale of a strata lot including: posting of signs times for showing property holding of open houses (s. 122)

8 Limitations on Bylaws Repair of common property A strata is not permitted to make an owner responsible for the repair and maintenance of common property (s. 72) Snow removal Window washing Landscaping Gutter cleaning

9 Limitations on Bylaws Age/Pets Does not apply to person/pet residing in strata lot at the time the bylaw is passed (s. 123)

10 Limitations on Bylaws Rentals Delayed application later of: One year after bylaw is passed One year after tenant who is occupying strata lot at the time the bylaw is passed moves out (s. 143) Exceptions: Rental Disclosure Statement Hardship

11 Drafting Enforceable Bylaws Why do we want it Do we have a problem or concern that the bylaw can address What will it do Does the bylaw require or prohibit an activity Who should it apply to Owners Visitors Tenants What effect will it have Market value What else to consider Human Rights Code Can it be enforced Is the language clear and unambiguous Is it able to be enforced Spayed/neutered pets Must conserve water/electricity

12 Bylaws to Consider Smoking Insurance Deductible Privacy Alterations Expanding Eligibility for Council Quorum for General Meetings

13 Age Restriction Bylaws The Strata Property Act permits age bylaws Section 4 of the Human Rights Code if there is a conflict between this Code and any other enactment, the Code prevails SPA 123 without limiting a strata corporation s power to pass any other bylaws, a strata corporation may pass a bylaw that restricts the age of persons who may reside in a strata lot

14 Guide Dog Service Animal Act Under the current legislation a person with a disability accompanied by a certified guide/service dog has the same rights, privileges and obligations as a person not accompanied by a dog specifically, they may enter and use an accommodation (strata), public transportation, eating place, lodging place or any other place to which the public is invited. Dogs are the only type of animal that can be certified under the Act.

15 Rental Bylaws A Strata Corporation must not: screen tenants establish screening criteria require the approval of tenants require the insertion of terms in tenancy agreements (s. 144)

16 Rental Bylaws A Strata Corporation may only: (a) prohibit the rental of residential strata lots, or (b) limit one or more of the following: (i) the number or percentage of residential strata lots that may be rented; (ii) the period of time for which residential strata lots may be rented.

17 Smoking Bylaws Bylaw may prohibit smoking: on common property or limited common property in a strata lot Bylaws prohibit: nuisance interference with the use of a strata lot and common property

18 Insurance Deductible Bylaws Strata corporation may sue an owner to recover the deductible if the owner is responsible for the loss that gave rise to the claim Bylaw is necessary Bylaw should not reference language that relates to negligence (act or omission)

19 Privacy - Surveillance Before your Strata Corporation conducts surveillance that includes: cameras and recordings monitored access through FOBS and Card systems monitored access through wireless systems enter phone recording and monitoring Ensure there is a bylaw that authorizes the collection of personal information

20 Alterations Bylaw may specify additional alterations that require approval: Hard surface flooring Hot tubs Alteration agreement should be used for alterations to common property to address: Responsibility for repair and resultant damage A requirement that buyers of the strata lot will also enter into an agreement. Form B may not be sufficient to bind a future buyer

21 Eligibility for Council Bylaw may allow other classes of persons to be council members (s. 28) Spouses of owners (including common law spouses) Children Suggest: with written authorization from the owner

22 Quorum Bylaw may amend quorum for general meetings (s. 48) Consider rewording bylaws that provide: If after 30 minutes a quorum is not present the meeting stands adjourned for a further 30 minutes after which those present constitute quorum Such a bylaw requires waiting 1 hour before the meeting can begin

23 Steps in Amending Bylaws 1. A new bylaw or proposed set of bylaws is drafted 2. Consult with the owners in advance for feedback 3. Engage a lawyer to review the final draft of proposed bylaws before they are issued with a notice for consideration 4. Review the existing bylaws to determine if any bylaws have to be repealed or amended 5. Issue notice of a general meeting: AGM/SGM 6. Include with the notice the exact wording of the proposed bylaw amendments and the resolution that determines what is being done with the bylaws 7. Vote on the proposed amendments by ¾ vote resolution 8. Calculate and record the votes in the minutes 9. If passed, register the proposed bylaw amendments in the Land Title Registry Form I 10. Inform owners, tenants and occupants

24 Resolutions The resolution to approve the bylaw amendment is as important as the amendment Repeal Repeal and replace Amend Add

25 Rules Section 125: (1) The strata corporation may make rules governing the use, safety and condition of the common property and common assets. (6) A rule ceases to have effect at the first annual general meeting held after it is made, unless the rule is ratified by a resolution passed by a majority vote (a) at that annual general meeting, or (b) at a special general meeting held before that annual general meeting. (7) Once a rule has been ratified under subsection (6), it is effective until it is repealed, replaced or altered, without the need for further ratification.

26 Bylaw/Rule Enforcement To enforce a bylaw or rule the Strata Corporation may do one or more of the following: (a) impose a fine under section 130; (b) remedy a contravention under section 133; (c) deny access to a recreational facility under section 134 Before enforcing a bylaw or rule the Strata Corporation may give a person a warning or may give the person time to comply with the bylaw or rule

27 Enforcement - Section 135 The Strata Corporation must not impose a fine against a person, require a person to pay the costs of remedying a contravention, or deny a person the use of a recreational facility unless the Strata Corporation has: Followed proper procedures, which are: received a complaint about the contravention

28 Enforcement - Section 135 given the owner or tenant the particulars of the complaint, in writing notice of bylaw complaint Section 135 given the owner a reasonable opportunity to answer the complaint, including a hearing if requested by the owner or tenant, and if the person is a tenant, given notice of the complaint to the person's landlord and to the owner

29 Continuing Contravention Once a Strata Corporation has complied with s. 135: fines may be imposed for a continuing contravention of a bylaw or rule without further compliance with s. 135: noise failure to pay strata fees barbeque on balcony if bylaws prohibit barbeques blue drapes if bylaws require beige/white

30 Fines The Strata Corporation may fine an owner if a bylaw or rule is contravened by (a) the owner, (b) a person who is visiting the owner or was admitted to the premises by the owner for social, business or family reasons or any other reason, or (c) an occupant, if the strata lot is not rented by the owner to a tenant

31 Fines The Strata Corporation may fine a tenant if a bylaw or rule is contravened by (a) the tenant, (b) a person who is visiting the tenant or was admitted to the premises by the tenant for social, business or family reasons or any other reason, or (c) an occupant, if the strata lot is not sublet by the tenant to a subtenant

32 Landlord s Responsibilities If the Strata Corporation fines a tenant or requires a tenant to pay the cost of remedying a contravention the Strata Corporation may collect the fine from the tenant from the tenant s landlord from the owner If the landlord or owner pay some or all of the fine or costs levied against the tenant, the tenant owes the landlord or owner the amount paid

33 Application of Strata Fees to Fines BCS 3648 and Podwinski Bylaw: Monies received shall be applied in the following order of priority (a) the oldest charge on the strata lot account followed by next oldest charge

34 Application of Strata Fees to Fines Owner failed to pay fines Paid strata fees pursuant to preauthorized payment form: I/We authorize (management company) to debit my/our account monthly covering monthly strata fees due to the Strata Corporation Strata Corporation deducted amount for strata fees, applied the money to fines

35 Application of Strata Fees to Fines Strata Corporation brought application for order to sell strata lot Court: Owner may choose to contest fines which remedy is denied by the bylaw The money was paid and accepted on the basis of the preauthorized payment form The terms of the bylaw do not override the preauthorized form

36 Hearings Section 34.1: (1) By application in writing stating the reason for the request, an owner or tenant may request a hearing at a council meeting. (2) If a hearing is requested under subsection (1), the council must hold a council meeting to hear the applicant within 4 weeks after the request. (3) If the purpose of the hearing is to seek a decision of the council, the council must give the applicant a written decision within one week after the hearing.

37 What are Maximum Fines? The Schedule of Standard Bylaws 1. A bylaw $ A rule $10.00 The strata is permitted to amend bylaws up to following maximum limits: 1. A bylaw $ A rule $ A rental bylaw $500.00

38 Bylaw Enforcement What if Strata Councils have not enforced certain bylaws? Pets/Age Repeal and replace bylaw Alterations Advise owners in writing that bylaws will be enforced May not be able to order removal of past alteration if strata lot has sold

39 Application to CRT Bylaw Enforcement Strata Corporation must be represented by strata council member

40 Bylaw Enforcement Order to comply with bylaw Order for eviction LMS 2768 v. Jordison NW 1245 v. Linden and Thibodeau