Spotlight on common property, land titles, and fundamental changes for stratas: Should the Strata Property Act expressly require a strata plan to include a depiction of common property?
15 January 2019
By Kevin Zakreski
BCLI is running a public consultation (closing date: 28 February 2019) on common property, land titles, and fundamental changes for stratas. It is asking for public input into its proposed changes to the Strata Property Act and Strata Property Regulation. For information on how to participate in the consultation please visit the Strata Property Law Project—Phase Two webpage.
This post is part of a series that spotlights issues discussed in the Consultation Paper on Common Property, Land Titles, and Fundamental Changes for Stratas. To read other posts in the series please click here.
Brief description of the issue
Section 244 of the Strata Property Act contains a long list of requirements for a strata plan, but nowhere among them is an express requirement to depict common property. This is so despite the act’s implicit characterization of common property as an essential ingredient of a strata property. Should section 244 be amended to contain an express requirement to depict common property on a strata plan?
Discussion of options for reform
This issue acts as a bridge between the one set of issues discussed in the consultation paper (on emerging issues in subdivision control) and another set (on common property). Creating a strata plan with no clear depiction of common property is one of the ways in which what may functionally be a bare-land strata plan could be characterized as a building strata plan.
Apart from concerns about subdivision control, the Land Title and Survey Authority for British Columbia is also on the record as disapproving this approach as a matter of land-title practice (PDF). The LTSA’s position is based on an interpretation of section 68 (3) of the act, which deals with strata-lot boundaries. An express provision that is directly on point would add more support for the LTSA’s position.
The downsides of this option for reform differ from those discussed in the preceding issues for reform. Because this option doesn’t involve an expansion of a regulatory process it doesn’t carry with it obvious costs and burdens for real-estate developers and others. The disadvantage is this approach is that it may be too modest. It isn’t clear that anyone is calling for this specific amendment. It also isn’t clear that it is needed. An argument could be made that section 68 (3) already gives the LTSA enough authority to deal with the issue. Finally, such a provision could be sidestepped by a rogue developer by simply including a trivial amount of common property on a strata plan.
The committee’s tentative recommendation for reform
The committee favoured this proposed reform. It would help to bring some clarity to the act’s requirements. In addition, this proposed reform, coupled with the preceding tentative recommendation, should provide some assistance in stamping out questionable subdivision practices.
The committee tentatively recommends:
The Strata Property Act should expressly require a strata plan to include a depiction of common property.