Many problems that arise in strata living, whether for owners, tenants, occupants or strata councils, could have been resolved at a very early stage if those involved had had a better, and clearer, understanding of what their bylaws say about their rights and obligations.
Although the Strata Property Act sets out a number of requirements for strata councils and owners to follow and abide by in the course of managing and administering the strata corporation and its business, the strata bylaws often fill out and expand on provisions that could be considered as general obligations, making them much more specific and setting out procedures to deal with them (particularly bylaws that have been amended from the standard set of bylaws). It is important for owners, and prospective owners, to review the bylaws; it is advisable to become familiar with the bylaws when you are an owner.
Strata council members have a duty to make themselves familiar with the bylaws as they are responsible for addressing complaints, dealing with issues of bylaw violations and reviewing enforcement options; they have considerable power to affect the daily lives of other owners in doing so.
As one example of the importance of knowing what your bylaws provide, many strata corporations include not only common property and individual strata lots, but also limited common property (LCP), where certain areas have been designated for the exclusive use of a particular strata lot or strata lots. LCP often includes balconies, patios and roof top areas that are easily accessible by only one strata lot owner. This designation may have been created at the outset by the owner developer of the strata complex or later by a ¾ vote of the owners at a general meeting.
Simply designating an area or areas as LCP does not make the owners who have been allocated the use of those areas responsible for anything more than ordinary maintenance and repair of those areas (e.g. cleaning and ensuring that patio drains or rooftop deck membranes are clean and protected), unless the owner has specifically agreed to be responsible for additional costs or expenses related to extraordinary repairs or replacement.
The strata corporation remains responsible for any kind of maintenance, repair or replacement that would occur less than once a year. However, some strata corporations have passed bylaws that make these LCP areas the full responsibility of the owners who have the use of them. This can have significant financial consequences for the owners concerned, particularly if they were not aware until the expense arose that they were responsible for paying for it. As an aside, this should be information that is contained in the Form B that a strata lot buyer should ask for before completing the purchase, but not everyone does their due diligence and not all buyers actually read the bylaws or minutes they are entitled to review prior to purchasing.
In any case, if a strata council is insisting that an owner carry out and pay for repairs that would exceed normal maintenance requirements, the owner should review the bylaws before taking any kind of position in response to the strata council’s demands. In order to change the normal liability of an owner with respect to LCP, the bylaws will have to be very clearly written. Any ambiguity will make a reliable interpretation and application of the bylaw very difficult and could result in a costly court battle, which the strata corporation is likely to lose on the principle of contra proferentum.
That is a fancy Latin legal term for the situation where one side, the strata, has drafted the bylaw provisions it is relying on to force the other side, the owner, to pay for something an owner would not otherwise have to pay for, but the court interprets those provisions against the strata because they are ambiguous and unclear. In other words, to change the owner’s usual responsibility into something more onerous, requires clear language in the relevant bylaw.
The bottom line is that it can save you a lot of time, effort and expense if you can become familiar with your strata bylaws. Not all strata bylaws are comprehensive or even written with many eventualities in mind, so if you do need to know how they might actually apply to your personal situation, we can help.