Unenforceable Bylaws
The Strata Property Act (SPA or ‘the Act’) mandates that a Strata Corporation must have Bylaws. Those bylaws allow for the Strata Corporation to govern the use of Common Property, such as a parkade, stairwell, lobby or other shared facility. Bylaws can also govern the use of Strata Lots themselves – restricting the behaviour of Owners within property that they own. It is for this reason that a Strata Corporation is sometimes referred to as a ‘4th Level of Government’. Sometimes a Strata Corporation’s Bylaws may conflict with other legislation, and the question arises as to whether or not those Bylaws are enforceable. We’ve included below some general commentary, which should not be interpreted as legal advice. If you are concerned with whether or not a specific Bylaw is enforceable, it is certainly prudent to seek legal advice.
The creation of Bylaws is provided for in Section 119 of SPA:
Nature of bylaws
119
(1) The strata corporation must have bylaws.
(2) The bylaws may provide for the control, management, maintenance, use and enjoyment of the strata lots, common property and common assets of the strata corporation and for the administration of the strata corporation.
There is a provision in the Act discussing “Unenforceable bylaws”. That is quoted below:
121
(1) A bylaw is not enforceable to the extent that it
(a) contravenes this Act, the regulations, the Human Rights Code or any other enactment or law,
(b) destroys or modifies an easement created under section 69, or
(c) prohibits or restricts the right of an owner of a strata lot to freely sell, lease, mortgage or otherwise dispose of the strata lot or an interest in the strata lot.
In a situation where a Strata Corporation bylaws “contravenes” another law, such as one enacted by a municipality, that Bylaw is unenforceable.
Without getting into a debate about what it means to “contravene” something, we will just say that the Bylaw of the Strata Corporation must conflict, violate or otherwise breach the higher law in order for it to be unenforceable.
It is possible for Strata Corporations to enact Bylaws (by way of a ¾ vote of the Owners) which would be more stringent and rigorous than City, Provincial or Federal Laws – the other 3 levels of Government. For example, Strata Corporations habitually institute restrictions on the type of hardwood flooring an Owner can install, the types of noises they can make, or the pets they can keep (within their own homes). Such Bylaws do not typically necessarily contravene other legislation, though they obviously are more restrictive than what any Government has legislated. There are exceptions to every rule of course, such as when an Owner requires hardwood flooring despite a building Bylaw prohibiting them, for health reasons. We are aware of cases where strata councils have been overturned and reprimanded after withholding permission from an individual requesting exemption based on a medical, physical or other extenuating circumstance. In general, though, part of strata living means submitting to the idea that there is another entity other than government – the Strata Corporation – which can institute more stringent and restrictive rules than society at large.
A contrary scenario is imaginable – one where a Strata Corporation’s Bylaws permit behaviour that would otherwise be prohibited. For example, a Strata Corporation could enact a Bylaw by way of a ¾ vote which would give one person the authority to seize the belongings of a neighbour who was too noisy after 11pm on a Thursday night. This would most certainly contravene another piece of legislation (probably several) and would thus likely be unenforceable.
Keep in mind that in a general sense, any Bylaw enacted by a Strata Corporation is “enforceable” until a Court says otherwise. It is judges who determine when a Bylaw contravenes another and higher piece of legislation. It is best to avoid being tested in Court by soliciting prudent and professional legal advice when implementing new Bylaws or considering the enforceability of old ones.
