Who Is Entitled To A Special Levy Refund?
We are often contacted by former owners of strata lots, who have learned that a Special Levy Refund was issued at the Strata Corporation in which they used to own and where they had paid the initial special levy. Sometimes there is a great deal of confusion, and unfortunately it is often the case that the owner’s realtor did not explain to them when they sold their suite that, failing a clause they are not entitled to any refunds which are paid out by the Strata Corporation after the transfer of title is complete. However, the Strata Property Act clearly states that refunds are issued to the individual who is the owner at the time of the refund. Indeed, Section 108 (which contains Special Levy provisions) was amended on December 10, 2009 to clarify previous ambiguities on the subject. Section 108, clauses 5 and 6 (which deal with levy surpluses) read as follows:
(5) If the money collected exceeds the amount required, or for any other reason is not fully used for the purpose set out in the resolution, the strata corporation must pay to each owner of a strata lot the portion of the unused amount of the special levy that is proportional to the contribution made to the special levy in respect of that strata lot.
(6) Despite subsection (5), if no owner is entitled to receive more than $100 in total under subsection (5), the strata corporation may deposit the excess in the contingency reserve fund.
These provisions often come as a surprise to former owners who are angry at this revelation, and most often direct their feelings to the Strata Council or Property Manager who they may blame for money not coming their way. We are familiar of a case where at least one owner sued in Small Claims Court for what they thought was their share of a refund, a case which was dismissed based on the provisions in the Act. In that situation, the owner’s time and energy would have been far better spent in pursuing their realtor for failing to include a clause in the Purchase Agreement which would have entitled them to receive the refund from the new owner.
Of course, small surpluses where all owners would be entitled to less than $100 are not processed at all and are merely deposited to the Contingency Reserve Fund per section 108(6) as noted above.
As with all of our articles, we do not purport to offer legal advice and if confronted with a situation like the one described above, a prudent strata council would seek legal advice to ensure you are acting in compliance with the Strata Property Act.