A closer look at the Report on Common Property, Land Titles, and Fundamental Changes for Stratas: Should all strata plans require the approval of an approving officer?
18 July 2019
By Kevin Zakreski
This post is the part of a series highlighting key recommendations in the Report on Common Property, Land Titles, and Fundamental Changes for Stratas. For other entries in the series, click here.
Brief description of the issue
Even though the deposit of a strata plan is considered to be a subdivision of land, the Strata Property Act currently allows many strata plans to be deposited without the approval of an approving officer. While bare-land strata plans require approving-officer approval, most building strata plans do not. (The small number of building strata plans that involve conversion of a previously occupied building do require approval—by an approving authority.)
This differential treatment of strata plans creates an incentive for developers to characterize what are functionally bare-land strata plans as building strata plans to avoid the requirement for approving-officer approval. The development of such building strata plans (in name only) skirts subdivision controls that form the cornerstone of land-use regulation in British Columbia. Should the Strata Property Act be amended to require that approval of all strata plans by an approving officer, as a means to reduce the incentive to characterize strata plans as building strata plans?
Discussion of options for reform
Concerns about the use of building strata plans to circumvent aspects of subdivision control can be traced back to before the advent of the Strata Property Act. In the 1990s, the Union of British Columbia Municipalities endorsed a series of resolutions that addressed aspects of this issue. One of these resolutions called for legislative amendments that would, in essence, require approving-officer approval of building strata plans.
The advantage of such an amendment is that it would directly address a problem that has dogged strata properties since at least the 1990s. There is a trail of developments that have used the building-strata form as a means to create what are functionally bare-land strata subdivisions without complying with the requirements for depositing a bare-land strata plan. Treating all strata plans on the same footing when it comes to approving-officer approval would dramatically undercut the incentive to attempt such a manoeuvre.
Other advantages to this approach include its simplicity and directness relative to other means that could be tried to address the issue. A more focused and limited provision—aimed just at the worst abuses, for example—would pose a more complex drafting problem. It would also run the risk of failing to address the underlying motivation of developers to characterize a strata plan as a building strata plan, which is the relatively lighter regulatory burden that such plans face.
The provincial response to the UBCM resolution did a good job of spelling out the disadvantages of this option for reform. This response noted that the days of the Condominium Act were numbered, as the new Strata Property Act had just passed the legislature, but without a provision that responded to the UBCM’s concern. As the ministry of finance argued in its portion of the response, implementing the UBCM resolution would potentially have the following drawbacks:
- costs and delay: “A municipal approval requirement for all new strata developments would add considerable cost, as well as delay, to the development process.”
- availability of other legal tools: “Currently, municipalities have considerable control over new strata developments because of their jurisdiction over zoning bylaws and the issuance of building permits.”
- response is out of proportion to the scale of the problem: “Indeed, it is likely, in large part due to the successful enforcement of [municipal] bylaws, that the overwhelming majority of new strata developments are built in compliance with the applicable municipal bylaws. . . . Given the incidence of non-conforming developments is relatively low, and that municipalities have the means with which to deal with the occasional non-conforming developments, [the ministry is of the view that] the imposition of a requirement for municipal approval for all strata developments would not appear to be warranted at this time.”
Finally, it’s worth noting that rejecting this approach doesn’t necessarily lead to the conclusion that the status quo is acceptable. It’s possible to tackle this issue with a targeted approach, rather than the general approach used in this option for reform.
The committee’s recommendation for reform
The committee saw some merit to this proposed reform. It would clearly address the subdivision problem. But it would come with significant drawbacks, mostly in the form of added costs and delays. The committee also had a sense that the underlying problem varied across the province. Large urban governments likely already have the tools to address this problem. But local governments in less densely populated areas might welcome provincial legislation. While their concerns shouldn’t be cast aside, the committee wasn’t convinced that a general approach was the best way for provincial legislation to deal with these concerns.
While a majority of consultation respondents agreed with the committee, a sizeable minority disagreed, favouring legislation that would require approving-officer approval for all strata plans.
The committee recommends:
The Strata Property Act should not provide that all strata plans require the approval of an approving officer.