Spotlight on strata governance: Should section 8 of the standard bylaws be relocated to the act?
27 March 2018
By Kevin Zakreski
BCLI is running a public consultation on governance issues for stratas. It is asking for public input into its proposed changes to the Strata Property Act, Strata Property Regulation, and Schedule of Standard Bylaws. 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 Governance Issues for Stratas. To read other posts in the series please click here.
The content of the bylaw
Section 8 of the Schedule of Standard Bylaws is a lengthy and important provision dealing with repair and maintenance of property by a strata corporation.
The committee’s tentative recommendations for reform
The committee viewed this provision as being a key provision of the standard bylaws. It gave extensive consideration to whether it should become part of the legislation.
The committee noted that there are a number of challenges to tackling this provision. Section 8 has proved to be very difficult to understand and apply in practice. Some strata corporations have amended the provision, a development which has often only added to the confusion. That said, a one-size-fits-all approach to repairs and maintenance raises its own concerns.
The committee felt that section 8 had to be discussed alongside section 72 of the act, which covers similar territory. Section 8 appears to set out the minimum standards for repairs and maintenance. So section 8 could be relocated to the act and a strata corporation that was so inclined could, possibly in reliance on section 72 of the act, take on additional obligations by adopting bylaws setting those obligations out. This approach might help to allay concerns that some strata corporations could have about relocating a provision in the standard bylaws to the act.
The committee tentatively recommends:
Section 8 of the Schedule of Standard Bylaws should be relocated to become new section 72 (3) of the Strata Property Act.
The committee also decided to clarify one aspect of the wording of section 8, which has led to some uncertainty in practice. While the existing provision refers to “balconies,” it doesn’t mention patios, which in practice are viewed as being distinct from balconies. In the committee’s view, adding a reference to patios would help to clarify the provision.
The committee tentatively recommends that:
When section 8 of the Schedule of Standard Bylaws is relocated to become new section 72 (3) of the Strata Property Act, “patios” should be added to the list of limited common property that the strata corporation has the duty to repair and maintain no matter how often the repair or maintenance ordinarily occurs.
The committee is aware that relocating section 8 to the act to become part of section 72 will result in a need to make some consequential amendments to section 72. The first such consequential amendment concerns the disposition of existing section 72 (3).
The committee tentatively recommends:
Existing section 72 (3) of the Strata Property Act should be renumbered as subsection (4) and should apply despite new subsection (3) (previously section 8 of the Schedule of Standard Bylaws).
In the committee’s view, there will also need to be consequential amendments to section 72 (2). First, the scope of section 72 (2) (a) will need to be limited to those items of limited common property that aren’t listed in current section 8 (c) (ii) of the standard bylaws (which will become part of new section 72 (3) of the act). Otherwise, the act will appear to say, illogically, that a strata corporation “may, by bylaw, make an owner responsible for the repair and maintenance of limited common property that the owner has a right to use.” But if a strata corporation were to act on this invitation and adopt a bylaw that purported to make an owner responsible for the repair and maintenance of an item of limited common property listed in the new section 72 (3) of the act, that bylaw would be unenforceable. The legislation will have to be amended to make it clear that the strata corporation’s ability to adopt such a bylaw is subject to compliance with new section 72 (3).
Second, existing section 72 (2) (b) will have to be addressed. Currently, this provision is something of a dead letter, because it allows a strata corporation to “make an owner responsible for the repair and maintenance of common property other than limited common property only if identified in the regulations and subject to prescribed restrictions.” Since no enabling regulations have ever been adopted, strata corporations aren’t able to take advantage of this provision. When section 8 of the standard bylaws is relocated, the provision will lose any possible rationale, because at that time new section 72 (3) of the act will provide that the “strata corporation must repair and maintain all of the following: . . . common property that has not been designated as limited common property.” So a strata corporation will have no scope in which to make an owner responsible for the repair and maintenance of common property that hasn’t been designated as limited common property. As a result, when section 8 of the standard bylaws is relocated to the act, existing section 72 (2) (b) should be repealed.