When is a Strata Council entitled to levy a fine against an Owner for a contravention of a Bylaw or Rule? This is a common question and it is important that all Council members familiarize themselves with the process, so that fines which are levied are not overturned later on if challenged.
Section 129 (specifically, Subsection 129(1)(a) of the Strata Property Act (SPA) entitles the Strata Corporation to levy fines against an individual:
129 (1) 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.
(2) 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.
Subsection 129(1)(b) refers to a Strata Corporation’s ability to perform work on a Strata Lot to remedy a Bylaw contravention (i.e. to remove hardwood flooring installed in contravention of a Bylaw).
Subsection 129(1)(c) provides that a Corporation can deny access to a recreational facility as a remedy for a Bylaw violation, but Subsection 134 clarifies that this only applies if the Bylaw/Rule violation relates directly to the use of that facility (i.e. someone who continually drops weights in a fitness room).
It is worth noting that Section 129(2) does allow a warning to be issued (at the discretion of Council) for any bylaw or rule violation, rather than a fine.
For the purposes of this article, we will focus on Subsection 129(1)(a) and the related Sections 130 and 135 of the SPA. Section 130 is quoted below and is relatively straight forward:
130 (1) 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.
(2) 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.
Section 135 is where Strata Corporations often have difficulties, and where someone who is given a fine generally finds cause to challenge the decision of Council. It is quoted below:
Complaint, right to answer and notice of decision
135 (1) The strata corporation must not
(a) impose a fine against a person,
(b) require a person to pay the costs of remedying a contravention, or
(c) deny a person the use of a recreational facility
for a contravention of a bylaw or rule unless the strata corporation has
(d) received a complaint about the contravention,
(e) given the owner or tenant the particulars of the complaint, in writing, and a reasonable opportunity to answer the complaint, including a hearing if requested by the owner or tenant, and
(f) if the person is a tenant, given notice of the complaint to the person’s landlord and to the owner.
(2) The strata corporation must, as soon as feasible, give notice in writing of a decision on a matter referred to in subsection (1) (a), (b) or (c) to the persons referred to in subsection (1) (e) and (f).
(3) Once a strata corporation has complied with this section in respect of a contravention of a bylaw or rule, it may impose a fine or other penalty for a continuing contravention of that bylaw or rule without further compliance with this section.
To put things simply, a Strata Corporation may not impose a fine, perform work on a Strata Lot, or deny access to a recreational facility unless ALL of the criteria above are met. That means Council must have received a complaint, they must have given the details of that complaint to the alleged offender and they must have also given a reasonable opportunity to respond. As noted above that opportunity includes a Hearing, if so requested. Councils may not issue fines without complying with all of these steps, which means that instead of asking the Property Manager to issue a fine for a noise complaint, they should ask the PM to issue a complaint letter and then make a decision on whether or not to fine after the opportunity to respond has elapsed.
As usual, the above is offered not as legal advice but is based on experience and knowledge of fines having been overturned when it has been shown that a fine was issued without strict compliance with Section 135.