Violations of the Strata Property Act

The Strata Property Act can be found on the internet at:
http://www.qp.gov.bc.ca/statreg/stat/S/98043_01.htm

The Strata Property Regulations can be found on the internet at:
http://www.bclaws.ca/civix/document/id/complete/statreg/43_2000

It is my understanding that these may not be the most current versions and that British Columbia is the only province in Canada that makes citizens pay for the current versions of legislation.

Most BC legislation can be found alphabetically at: http://www.bclaws.ca/
Posted by Dianne Bond at 9:31 AM  

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Mistakes that are perpetuated in the strata agency industry usually concern nondisclosure of strata records or bogus bylaws offloading repair and maintenance or insurance deductibles contrary to the SPA, and both can be traced back to lawyers.
 

http://www.macleans.ca/society/life/condo-hell/

The most fraudulent and insidious are s.35 minutes that are erroneous, or do not reflect decisions, or other records that are not disclosed or provided when copies are requested pursuant to s.36. Adrienne Murray inflating the cost of copies and Clark Wilson advising council to delete correspondence delivered by email have played instrumental roles in contraventions of s.36 that have resulted in absurdly unlawful practices and disparaging misrepresentations or oppression of owners who seek to expose corruption. The damage  that flows from contraventions of s.35 and s.36 is nearly unspeakable, if not criminal.

With respect to insurance, no matter what kind of tortured argument Clarke Wilson or Garth Cambrey, vice chair of the CRT, make to legitimize bogus bylaws and deprive individuals of mandated insurance protection, bylaws that contradict the SPA cannot be enforced without further contravening the law. 

If a $50,000 insurance deductible exceeds the $500 cost of repairs, that does not change the damage from a named peril from damage that is insured to damage that is not; all it does is transfer the cost of mandatory replacement value repairs that are under the deductible to the strata corporation. In each case, insurance deductibles are a common expense, unless and until a court decides otherwise, no matter what strata bylaws and perverse bias from those at the top might say. Furthermore,

A collection of an insurance deductible cannot be imposed on the issuing of a Form F Payment Certificate required when someone sells their strata lot, unless the strata corporation has a decision from the courts, the Civil Resolution Tribunal or an arbitration, or has an accepted action in those jurisdictions. http://theprovince.com/life/homes/condo-smarts-detailed-minutes-key-to-tracking-bylaw-enforcement

My observations, both on and off the strata council of NW 2671, lead me to conclude that violations of the Strata Property Act (SPA) escalate when the DECISION TO APPROVE, DENY, OR IGNORE a matter cannot be found in s.35 minutes and there is no penalty for persistent, purposeful failure.

Strata governance would quickly improve if owners could rely on s.36 for access to material records, JUST AS THE LAW REQUIRES, particularly the correspondence to and from council that is required to make vague minutes and confusing financial statements comprehensive enough to be reasonably understandable.

NOTHING I can think of in the past 30 years
is more likely to have a positive effect on strata governance and reduce disputes than STRICT compliance with s.35 and s.36 of the SPA in my opinion.

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The following examples of a long established pattern of shockingly persistent SPA violations in RED are just off the top of my head, the full extent of the chicanery is just too traumatic for me to complete or articulate coherently and concisely. This outline is not perfect, but it’s my best effort in the disadvantaged condition that I am in, and it far exceeds the efforts of most owners.

Definitions and interpretation

1 (1) In this Act:

“common property” means(a) that part of the land and buildings shown on a strata plan (no "decks" are shown on the strata plan) that is not part of a strata lot (like the landscaped areas and limited common property patios and balconies), and

(b) pipes, wires, cables, chutes, ducts and other facilities for the passage or provision of water, sewage, drainage, gas, oil, electricity, telephone, radio, television, garbage, heating and cooling systems, or other similar services (including misaligned ensuite pipes and air ducts producing chronic mold in 409 and decades of continual nuisance and loss of use), if they are located

(i) within a floor, wall or ceiling that forms a boundary,

(A) between a strata lot and another strata lot, (the misaligned pipes are between units 409 and 411 and ducts are between 409 and the air space outside 510 - I'd need access to as-built drawings to be any more specific) 

(B) between a strata lot and the common property, (like 409's exterior pipes that nobody has been able to screw our hose onto since 2005)

or

(C) between a strata lot or common property and another parcel of land, or

(ii) wholly or partially within a strata lot, if they are capable of being and intended to be used in connection with the enjoyment of another strata lot or the common property (like drains from Unit 510's garburator that repeatedly turned Unit 409's kitchen into a lake);

“common expenses” means expenses

(a) relating to the common property and common assets of the strata corporation (hundreds of thousands for unauthorized construction of decks and destruction of trees to produce panoramic views contrary to s.71 -- but not one single dime to remedy intrusive views and loss of privacy, provide replacement value repairs of supposedly insured water damage, or repair pipes and ducts for Unit 409), or

(b) required to meet any other purpose or obligation of the strata corporation (THEORETICALLY including insurance deductibles, landscaping pursuant to restrictive covenants and legitimate building permits, repairs of defective substrate in 409, NOT just 407, and water damage in 409 and 510, NOT just 227 -- but ACTUALLY SUBSTITUTING bogus work order expenses for the unjust enrichment of Mae Reid and Sherrill Berg, costing oppressed owners tens or hundreds of thousands of dollars, to say the least)

“limited common property” means common property designated (on the strata plan, or in compliance with SPA, not by false accusations against me to the RCMP) for the exclusive use of the owners of one or more strata lots;

“unit entitlement” of a strata lot means the number indicated in the Schedule of Unit Entitlement established under section 246, that is used in calculations to determine the strata lot ’s share of

(a) the common property and common assets (like trees, landscaping, recreational sundecks, and gate access denied to Unit 409), and

(b) the common expenses and liabilities of the strata corporation (like $25,000 insurance deductibles, replacement value repairs, and a near $500,000 special levy surplus owed to the strata lots that paid it, also denied to Unit 409).

Responsibilities of strata corporation

3 Except as otherwise provided in this Act (not in strata bylaws or indemnity agreements), the strata corporation is responsible (that is the strata, not the owner) for managing and maintaining (NOT destroying) the common property and common assets (trees, landscaping, and gate access) of the strata corporation for the benefit of the owners. (all owners, not just those unlawfully enjoying extra decking at the expense of those getting less than they bargained for, or panoramic views contrary to restrictive covenants and geotechnical security)

Strata corporation functions through council

4 The powers (to prepare reasonable agendas, hold votes, exercise easements to repair building defects) and duties (to record results of votes, repair and maintain property, enforce bylaws, provide strata records and replacement value insurance and repairs) of the strata corporation must (must is mandatory, not discretionary) be exercised and performed by a council, unless this Act, the regulations or the bylaws provide otherwise. (NW 2671's council repeatedly breaches everything in red)

Council exercises powers and performs duties of strata corporation

26 Subject to this Act, the regulations and the bylaws, (the Act overrules bogus bylaws that contradict it), the council must ("must" is mandatory) exercise the powers and perform the duties of the strata corporation, including the enforcement of bylaws (most notably, Bylaw 4) and rules.

Control of council

27 (1) The strata corporation may (NOT, when motions are obstructed and tampered with) direct or restrict (with a court order, maybe) the council in its exercise of powers and performance of duties by a resolution passed by a majority vote at an annual or special general meeting. (at the 2007 AGM this strata carried a motion that I made to direct council  to give owners who wanted extra decks the option of paying the attributable expense or the deck would be removed, but instead the strata management team tampered with the minutes, rendered my motion unrecognizable with nonsense not even close to my words, and diverted special levy funds into the unjust enrichment of members of council acting in horrific conflict as opposed to the direction of the owners or the best interests of the strata.)

Council member’s standard of care

31 In exercising the powers and performing the duties of the strata corporation, each council member must

(a) act honestly (not fraudulently) and in good faith (not disingenuously) with a view to the best interests of the strata corporation (not contrary to the best interests of the strata, or to avoid user fees for their own unjust enrichment), and

(b) exercise the care (not chicanery), diligence (not reckless disregard) and skill (not artifice) of a reasonably prudent (not irresponsible or immune) person (not a gang or mob) in comparable (not conflated) circumstances.

Disclosure of conflict of interest (see also Real Estate Services Act Rules)

32 A council member who has a direct or indirect interest (like personal liability, malice, or unjust enrichment) in

(a) a contract or transaction (like extra decking, panoramic views, destructive tree removal) with the strata corporation, or

(b) a matter that is or is to be the subject of consideration by the council, if that interest could result in the creation of a duty or interest (like avoiding liability, user fees, or restrictions on exclusive use) that materially conflicts with that council member’s duty or interest as a council member,

must

(c) disclose fully and promptly to the council the nature and extent of the interest, (as of 2018, the extent of Councillor Sherrill Berg's interest is parallel to over a decade of her avoiding paying user fees for her unlawful exclusive use of common property adjacent to Unit 508 at the expense of others, particularly Unit 409, whose view she rudely assaulted for years by storing big unsightly tarps in violation of Bylaw 4 and whose health and welfare was affected by Ms. Berg misappropriating special levy funds while eschewing remedial platform requests by 409, which Ms. Berg characterized to the 2014 AGM as "outrageous" and the extent of Georgia Title's interest is avoiding liability for her role in devastatng for years common property worth millions)

(d) abstain (not move, second, and vote like Sherrill Berg and Mae Reid did on the strata's construction of "their" decks) from voting on the contract, transaction or matter, and

(e) leave (not hide decisions on the content of my correspondence from the owners and minutes, like Al MacLeod, Georgia Title, and Marnie Hennan did) the council meeting

(i) while the contract, transaction or matter is discussed, unless asked by council to be present to provide information, and

(ii) while the council votes on the contract, transaction or matter.

Accountability

            33   (excerpt) if a council member has not acted honestly and in good faith a court may require the council member to compensate the strata corporation or any other person for a loss or  require the council member to pay to the strata corporation any profit the council member makes as a consequence 

Al MacLeod, Mae Reid, and Sherrill Berg acted in conflict to section off patio repairs from balconies, conflate patios and work orders with their own unlawful exclusive use of common property for unauthorized decks, and divert special levy funds to avoid paying tens of thousands of dollars in user fees AND NO COURT required compensation or denied them the profit from their own wrongs BECAUSE OWNERS HAD NO REASONABLE ACCESS TO JUSTICE for decades.

Approval of council member remuneration

            34   Any remuneration paid to a member of council for the member’s exercise of council powers or performance of council duties must be approved in advance of payment

(a) in the budget,

(b) in the bylaws, or

(c) by a resolution passed by a 3/4 vote at an annual or special general meeting.

Not true; Georgia Title, having failed to perform the s.36 duties of council to provide access to records as the strata secretary, was paid in violation for exercise of council's powers, because I could not overcome systemic barriers to access justice. 

Request for council hearing

34.1 (1) By application in writing stating the reason for the request, an owner or tenant may request a hearing at a council meeting.

(2) If a hearing is requested under subsection (1), the council must hold a council meeting to hear (not eschew, conflate, filibuster, disrupt, attack, and defame like Al MacLeod, Mae Reid, and Joan Macdougall) the applicant within 4 weeks after the request.

(3) If the purpose of the hearing is to seek a decision of the council, the council must give the applicant a written decision within one week after the hearing.

(MAJOR VIOLATIONS OF S.35 AND S.36...)

STRATA RECORDS (I apologize if I get somewhat hysterical over the next 2 sections.)
Anything to do with strata records makes me sick or gives me hives.

35 (1) The strata corporation must prepare all of the following records:

(a) minutes of annual and special general meetings and council meetings, including the results of any votes; (this gives a reasonable expectation of reliable comprehensive facts in an form understandable enough for owners to make informed decisions --  but instead DECISIONS ON MATERIAL ISSUES ARE MADE PREEMPTIVELY and SECRETLY, WITHOUT VOTES OR RECORDS, issues raised in correspondence are not disclosed, receipt is denied of notices advising of unlawful conduct, votes are reported to be unanimous, with not one single vote cast either in favour or against, in order to adopt bogus bylaws and acts of bad faith, minutes are tampered with so that motions carried are beyond recognition, or made purposefully deceptive, conflated, and too ambiguous to be decipherable)

(b) a list of council members (including phone numbers, or email if not prohibited);

(c) a list of

(i) owners, with their strata lot addresses, mailing addresses if different, strata lot numbers as shown on the strata plan, parking stall numbers, if any, and unit entitlements,

(ii) names and addresses of mortgagees who have filed a Mortgagee’s Request for Notification under section 60,

(iii) names of tenants, and

(iv) assignments of voting or other rights by landlords to tenants under sections 147 and 148;

(d) books of account showing money received and spent and the reason for the receipt or expenditure (not 900 pages of computer chaff churned out in disregard of my specific instructions to the contrary and mixed into an indeciperable double-sided ream of irrelevant form letters without any material attachments, copied upside down with blank pages, missing pages, and little if any records that I requested, in attempts to justify the strata DENYING ACCESS TO MATERIAL RECORDS, including evidence of MONEY LAUNDERING by Al MacLeod diverting the HALFORD's $10,000 holdback into the strata's account UNLAWFULLY as the only way that he could abscond with their money after no special levy was passed before the end date in their 2002 contract of purchase and sale); 

(e) any other records required by the regulations.

I was able to obtain incriminating records that were withheld for years only after Teamwork Property Management allowed me access when they resigned as our strata agent in 2010 after warning the owners that Al MacLeod was acting in conflict. 

I then followed that up with a search of court records.

(2) The strata corporation must retain copies of all of the following:

(a) the records referred to in subsection (1);

(b) the registered strata plan and any strata plan amendments as obtained from the land title office;

(c) this Act and the regulations;

(d) the bylaws and rules;

(e) resolutions that deal with changes to common property, including the designation of limited common property (I cannot access material resolutions regarding Unit 407, and nothing was filed in the strata's Common Property register in the Land Title Office the last time that I looked in about 2015);

(f) waivers and consents under section 41, 44 or 45 (My requests for those and other records are ignored);

(g) written contracts to which the strata corporation is a party (including indemnity agreements, strata agency contracts, and contracts for professional services);

(h) any decision of an arbitrator or judge in a proceeding in which the strata corporation was a party, and any legal opinions obtained by the strata corporation;

(i) the budget (showing insurance premiums as one of the largest common expenses that owners are strictly liable to pay as a result of statutory duty) and financial statement (the $10,000 holdback for Al MacLeod's money laundry is not identified in any financial statement that I ever saw) for the current year and for previous years;

(j) income tax returns, if any;

(k) correspondence sent or received by the strata corporation and council (including email and correspondence withheld for years and then destroyed);

(l) bank statements, cancelled cheques and certificates of deposit;

(m) Information Certificates issued under section 59 (not a partial extract with vexatious omissions of the Bylaws, Act, developer's Rental Disclosure Statement, details of the Contingency Reserve Fund, and up to half a million dollars in historical common property expenses omitted from the Depreciation Report);

(n) the records and documents referred to in section 20 or 23 obtained by the strata corporation;

(o) any other records required by the regulations.

(3) Records referred to in this section must be retained by the strata corporation for the periods set out in the regulations.(which is 2 years for correspondence, 6 years from the end of a contract, and permanently for legal documents; but this strata persistently delays access to records for longer than retention periods and then says there are no records, or worse, pretends that they were provided when they never were.)

Access to records

35. The strata corporation must prepare minutes of meetings, including the results of any votes; and books of account showing money received and spent and the reason, resolutions that deal with changes to common property, including the designation of limited common property; waivers and consents under section 41, 44 or 45; written contracts to which the strata corporation is a party; correspondence sent or received by the strata corporation and council; Information Certificates, depreciation reports obtained. 

DON'T LOOK!

Members of the strata management team have withheld requested s.35 records from myself and my husband while we were on council and from Gary Strong while he was the strata secretary; allowed tampering; withheld, denied, and admitted to destroying s.35 strata records that I requested under s.36; imposed prohibited charges and insisted on copying more than 900 pages that I specifically excluded from my request, overwhelmed me under hundreds of mixed up extra pages, missing pages, upside down pages copied on the back of unrelated pages, with multiple variations and duplicates; entrapped me into sifting through boxes and boxes of rat chewed chaff; created record keeping systems more convoluted than I ever could have imagined, falsely claimed that I have all the strata records and to have couriered what they had no courier slip for; while I never did get s.35 records that I kept asking for, including but not limited to a copy of the courier slip, insurance policy, indemnity agreements, and they used their own contrived conduct as evidence to publicly accuse me of being unreasonably demanding for repeating requests for material records I was deprived of access to and never had. 

Believe it or not, if the SPA was enforced, it could be relied on,

but when it is brought before the courts
and systemically subordinated or
treated like guidelines, that are only dressed up as law,
it is a betrayal of trust, and worse than useless.

My efforts to access records have been thwarted so many times, in such traumatic ways, that the memory of the frustration triggers what feels like an overwhelming cellular aversion throughout my body in proximity to strata records, particularly in paper form, and an inability to effectively manage prescribed time frames for production of evidence. I first recognized signs of this impairment when I listed boxes of documents in an attempt to defend myself against the Treasury Board of Canada depriving me of my pension and experienced repetitive strain injury following a "hurry up and wait" 30-hour typing binge preparing a chronological history and list of documents that nobody else looked at, the sense of aversion in proximity to boxes of documents has been exacerbated by the conduct of the strata, overwhelming me since the 1990s. As a result of the boundaries set by my body and health, I am primarily relying on electronic records and photos, and I am painfully aware that this does not meet a standard of perfection. I know that my body is trying to protect itself even though it may be fatal to my legal interests; but for anyone who bothers to review not much more than the photos and governing laws, with ordinary common sense, there should be more than enough evidence of the material facts.  

36 (1) On receiving a request, the strata corporation must (MUST is mandatory statutory language by NECESSITY) make the records and documents referred to in section 35 available for inspection by, and provide copies 

(members of the strata management team manufactured invidious chaff and withheld requested s.35 records for decades, tampered with, wrongfully deleted, or never provided them to me pursuant to s.36, or at all, some of which include minutes, blue prints, the 2003 insurance policy, material correspondence, common property records, legal opinions, and who knows what else. My requests were characterized as harassment, and email confirmation of content and delivery was prohibited. Foment fines were held out to owners as an inconvenience required to control my correspondence, when my correspondence was not controlled, and the only thing that was actually controlled was REAL PROOF of delivery and content of ANY material sent to the strata by owners.) 

to

(a) an owner,

(b) a tenant who, under section 147 or 148, has been assigned a landlord’s right to inspect and obtain copies of records and documents, or

(c) a person authorized in writing by an owner or tenant referred to in paragraph (a) or (b).

(1.1) On receiving a request from a former owner, from a former tenant referred to in subsection (1) (b) or from a person authorized in writing by the former owner or former tenant, the strata corporation must with respect to records and documents referred to in section 35 that, whenever created relate to the period during which the former owner or former tenant was an owner or tenant, make those records and documents available for inspection by, and provide copies of them to, the former owner, former tenant or person authorized in writing, as the case may be.

When the request came from the Halfords to prove that Al MacLeod had no reasonable cause of action, as former owners they could not get the minutes they needed from the strata, and they had to get them from me. Denying access to material strata records is the single most persistent and insidious link in a lawyer driven chain of corruption, right from decades of obstruction preventing me from seeing Garth Cambrey's response to my neighbour's request to build extra decking subject to no objection from 409, to Clark Wilson telling stratas to delete email and deny access to legal opinions, to burying me in 900 pages after I specifically said not to, with Adrienne Murray besmirching my character to justify violating the Strata Property Act while denying access to evidence of money laundering, to drowning me in a dozen boxes of old chaff to exploit desperation, vulnerability, and distraction, while repeatedly and permanently denying access to records requested, particularly very specifically cited correspondence, insurance, and as-built final drawings showing material construction details.

The 900 pages and boxes of rat chewed chaff that Joan Macdougall and Georgia Title buried me in served primarily to sabotage my attempts to access material records, defame my reputation, and make me sick. I never did gain access to the records that Joan Macdougall gave Al MacLeod to escape with when he left council or the ones that she said she destroyed as the strata agent, but I heard from Gary Strong that they included defamatory content, something along the lines of her telling council that I could never be satisfied, when all it would take to satisfy me was to give me the material records that are persistently withheld, instead of characterizing my requests as harassment.

I WOULD NOT STILL BE ASKING, BUT FOR THREE REASONS:

The information in the records I can't access could be important to me

The law says I have a right to records withheld and held out as destroyed for years

 
Persistent nondisclosure raises apprehensions of nefarious misconduct

On receiving the request of a tenant, or a person authorized in writing by a tenant, the strata corporation must

(a) make the bylaws and rules available for inspection, and

(b) provide copies of the bylaws and rules.

(3) The strata corporation must comply with a request under subsection (1), (1.1) or (2) within 2 weeks (not 10 years, and counting)

unless the request is in respect of bylaws or rules, in which case the strata corporation must comply with the request within one week. (Here, strata lawyers, managers, and councils treat mandatory language as worse than meaningless as there is no penalty provision to induce compliance, and enforcement practices do not effectively deter deliberate and persistent violations or compensate for foreseeable damage.)

(4) The strata corporation may charge a fee for a copy of a record or document provided under this section of not more than the amount set out in the regulations and may refuse to supply the copy until the fee is paid (In practice the sky is the limit for costs, delays, and refusals.)

(MAJOR VIOLATIONS OF S.35 AND S.36 ARE ONGOING...) 

Annual general meeting

40 (1) The strata corporation must hold annual general meetings except as provided under section 41.

(2) An annual general meeting must be held no later than 2 months after the strata corporation’s fiscal year end. (Despite minutes that profess compliance, historical dates show that AGMs have not been SPA compliant more than about once in the 10 years up to and including 2018. As a result, I have missed trips, classes, and meetings while offenders wreck havoc after expiry of their terms, taking more than their share of time on council, by up to 6 months, leaving correspondingly less time for others.)

Information Certificate

59 (1) Within one week of a request by an owner, a purchaser or a person authorized by an owner or purchaser, the strata corporation must give to the person making the request an Information Certificate in the prescribed form.

(2) The certificate must contain the information required by subsection (3), as of the date of the certificate. (Not when I made the request and paid the fee.)

(3) The certificate must disclose all of the following in respect of the strata corporation and the strata lot for which the request is made:

(a) the monthly strata fees payable by the owner;

(b) any amount that the owner owes the strata corporation, other than an amount paid into court or to the strata corporation in trust under section 114;

(c) any agreements under which the owner takes responsibility for expenses relating to alterations to a strata lot, the common property or the common assets;

(d) any amount that the owner is obligated to pay in the future for a special levy that has already been approved and the date by which the payment is to be made;

(e) any amount by which the expenses of the strata corporation for the current fiscal year are expected to exceed the expenses budgeted for the fiscal year;

(f) the amount in the contingency reserve fund minus any expenditures which have already been approved but not yet taken from the fund; (Not when I made the request and paid the fee.)

(g) any amendments to the bylaws that are not yet filed in the land title office;

(h) any resolution passed by a 3/4 vote or unanimous vote that is required to be filed in the land title office but that has not yet been filed in the land title office;

(i) any notice that has been given for a resolution that has not been voted on, if the resolution requires a 3/4 vote or unanimous vote or deals with an amendment to the bylaws;

(j) any court proceeding or arbitration in which the strata corporation is a party and any judgments or orders against the strata corporation;

(k) any notices or work orders received by the strata corporation that remain outstanding for the strata lot, the common property or the common assets;

(l) the number of strata lots in the strata plan that are rented;

(m) any other information required by the regulations.

(4) Copies of all of the following must be attached to the certificate:

(a) the rules of the strata corporation;

(b) the current budget of the strata corporation;

(c) the owner developer’s Rental Disclosure Statement under section 139, if any. (Not when I made the request and paid the fee.)

(5) The information in subsection (3) disclosed in a certificate is binding on the strata corporation in its dealings with a person who relied on the certificate and acted reasonably in doing so.

Ownership of property

66 An owner owns the common property and common assets of the strata corporation as a tenant in common in a share equal to the unit entitlement of the owner’s strata lot divided by the total unit entitlement of all the strata lots. (unlike tenants in common who own other property, strata owners have no partition of property rights, instead they are governed by the SPA, which sets out proportionate unit entitlement and restricts exclusive use.)

No president can "definitely own" the recreational sundeck adjacent to Unit 412 which was built with other people's money by the strata. And Lynda Baker KNEW IT.

 

Adrienne Murray gave that advice in her 2013 legal opinion on deck issues.

Strata lot boundaries

68 (1) Unless otherwise shown on the strata plan, if a strata lot is separated from another strata lot, the common property or another parcel of land by a wall, floor or ceiling, the boundary of the strata lot is midway between the surface of the structural portion of the wall, floor or ceiling that faces the strata lot and the surface of the structural portion of the wall, floor or ceiling that faces the other strata lot, the common property or the other parcel of land. (I have been denied access to as-built strata records showing original sky lights, patio doors, chimneys, vents, and ensuite plumbing details) 

Implied easements

69 (1) There exists an easement in favour of each strata lot in the strata plan and the owner of each strata lot for the strata lot’s vertical and sideways support by the common property and for the passage or provision of water, sewage, drainage, and other services through or by means of any pipes or other facilities existing in the common property to the extent those systems or services are capable of being, and intended to be, used in connection with the enjoyment of the strata lot.

(3) The easements charge and burden that part of the common property capable of providing support or shelter to a strata lot.

(4) The easements referred to in subsections (1) may be enforced by the strata corporation on its own behalf or on behalf of one or more owners to the same extent as if the strata corporation were the owner of a strata lot or the common property that benefits from the easement. (mold producing structural defects of vents and plumbing make 409's ensuite unfit for the purpose for which it is intended, causing us decades of continual nuisance and loss of use)

Change in use of common property

71 Subject to the regulations, the strata corporation must not make a significant change (compare the strata plan and landscape design plan to drawings and photos of changes for which strata is responsible) in the use or appearance of common property or land that is a common asset unless

(a) the change is approved by a resolution passed by a 3/4 vote at an annual or special general meeting, or (in 2007 the strata built most of the recreational sundecks and extra decking without 75% approval, with surplus special levy funds diverted from a building envelope project completed in 2005)

(b) there are reasonable (reasonable being the key word) grounds to believe (based on probabilities) that immediate (no time for a vote) change is necessary (no other option) to ensure safety (not unjust enrichment, panoramic views, or insidious distraction) or prevent (not cause, preemptively. nefariously, irreparably) significant loss (unique to Unit 409 in particular) or damage (to me personally, and to the geotechnical or economic security, governance, or reputation of the strata).

 

Repair of property

72 (1) Subject to subsection (2), the strata corporation must repair and maintain common property

(case law defines "maintain" as to the original standard, not upgrades for balconies and downgrades for patios and landscaping and Unit 409)

and common assets (like new ventilation for upper units - paid for by strata fees - leaving substandard ventilation in Phase One lower units - extremely unfairly

 with vents and trellis planter tree substitutes unlawfully offloaded onto Unit 409)
 

This is the black mold from Unit 409 that I complained about from substandard ventilation in Phase One. The vent in the peaked roof at the top is a remedial suggestion that I made in 2003, which Peter Slack rejected when Al MacLeod characterized it as "criminal harassment." The round vent above the mold is a $15 vent that the strata charged me $500 for. It was so unconscionable that the project manager would not have anything to do with it, and my cheque was eventually returned after he refused to touch it.

(2) The strata corporation may, by bylaw, make an owner responsible for the repair and maintenance of

(a) limited common property that the owner has a right to use, (it is significantly unfair to section off responsibility for 2-bedroom units with balconies that get prompt repairs, upgrades, ventilation, and maintenance including extravagant window washing paid for by strata fees from 3-bedroom units with patios subjected to extraordinary delays, horrific loss and risk, unconscionable downgrades destructive lack of maintenance and conflated misnomers in a purposeful campaign that mixes them in with unfunded recreational sundecks and foists the added expense onto those like me, who pay the most and get the least)  or

(b) common property other than limited common property only if identified in the regulations (nothing is identified in the regulations, indemnification agreements are contrary to the intent of the SPA, including temporary exclusive use and user fee Regulation, and when tested proved to be bogus, conclusively, by past practice in 2007) 
 and subject to prescribed restrictions. (including the restrictions on denying access to recreational facilities on common property)
(3) The strata corporation may, by bylaw, take responsibility for the repair and maintenance of specified portions of a strata lot.

Short term exclusive use (short term - not a free gift in perpetuity)

76 (1) Subject to section 71, the strata corporation may give an owner or tenant permission to exclusively use, (a review of minutes from 1987 to 2017 shows that never once in 30 years was permission for any kind of exclusive use ever granted in this complex)

or a special privilege in relation to, common assets or common property that is not designated as limited common property. (a review of the minutes shows that in 2014 a special privilege was granted to 3 units to add decks to common property at their own expense, subject to no loss to others and their agreement to remove the work and restore the area at their own expense if the work is unprofessional or devalues the strata)

(2) A permission or privilege under subsection (1) may be given for a period of not more than one year

(the strata built and enclosed recreational sundecking on common property with a fence without an access gate, which is permanent, and so is the exclusive use and loss to others from unlawful denial of access), and may be made subject to conditions. (all such conditions proved to be invalid or unenforceable in 2007)

(3) The strata corporation may renew the permission or privilege and on renewal may change the period or conditions. (the strata may change the conditions for the special privilege annually)

(4) The permission or privilege given under subsection (1) may be cancelled by the strata corporation giving the owner or tenant reasonable notice of the cancellation. (at any time, the strata can give notice, cancel the privilege, and remove the deck)

Work order against strata corporation property

83 The strata corporation must comply with a requirement to do work on or to

(a) common property, or

(b) land that is a common asset

if the work is required (reconstructing unauthorized extra decking was contrary to the vote of the owners and the special levy for the building envelope, and it was never required - the work order permitted REMOVAL) by a notice or order of a public or local authority which is authorized by law to require the work, and the notice or order is given to the strata corporation.

Strata corporation responsible for common expenses

91 The strata corporation is responsible for the common expenses of the strata corporation. (like insurance deductibles, structural repairs, replacement value repairs, and maintenance of common property, including reinstatement of trees and landscaping

Unapproved expenditures

98 (1) If a proposed expenditure has not been put forward for approval in the budget or at an annual or special general meeting (like unlawful destruction of landscaping and construction of unauthorized decking), the strata corporation may only make the expenditure in accordance with this section.

(2) Subject to subsection (3), the expenditure may be made out of the operating fund if the expenditure, together with all other unapproved expenditures, whether of the same type or not, that were made under this subsection in the same fiscal year, is

(a) less than the amount set out in the bylaws, or

(b) if the bylaws are silent as to the amount, less than $2 000 or 5% of the total contribution to the operating fund for the current year, whichever is less.

(3) The expenditure may be made out of the operating fund or contingency reserve fund if there are reasonable grounds to believe that an immediate expenditure is necessary to ensure safety or prevent significant loss or damage, whether physical or otherwise. (no immediate expenditure was necessary to vandalize patios during years of unreasonable delays, no work order required the strata to build unauthorized recreational sundecks on common property, no emergency required the strata to destroy landscaping or cut down trees to create panoramic views, and failure to replace the trees cut is a significant change contrary to section 71, in breach of the strata's duty to maintain as required in section 72, it is not an expenditure)

(4) A bylaw setting out an amount for the purposes of subsection (2) (a) may set out further conditions for, or limitations on, any expenditures under that provision.

(5) Any expenditure under subsection (3) must not exceed the minimum amount needed to ensure safety or prevent significant loss or damage.

(6) The strata corporation must inform owners as soon as feasible about any expenditure made under subsection (3). (how did "must" come to mean "may, or may not?")

Special levy

108 (2) The strata corporation must calculate each strata lot’s share of a special levy in accordance with section 99, 100 or 195, in which case the levy must be approved by a resolution passed by a 3/4 vote at an annual or special general meeting…(3/4 (it would be extremely illogical to expect 3/4 approval to reconstruct rotten unauthorized decking for the exclusive use and benefit of those unwilling to pay the extra costs attributable to the existence of said decking under any circumstances; it is beyond belief that owners in a leaky condo financial crisis would ever carry a motion to do so. We voted to repair the building envelope pursuant to the contract, with the balconies and "decks" shown on the strata plan as confirmed verbally at the time.)

(3) The resolution to approve a special levy must set out all of the following: (a) the purpose of the levy; (voters were given to understand that the purpose was repair of the building envelope and balconies and patios on the strata plan, not to section off balconies for prompt upgrades and conflate patios with "decks" for deception, delay, destruction, and downgrades) (b) the total amount of the levy;

(4) The strata corporation must account for the money collected separately from other money of the strata corporation, use the money collected for the purpose set out in the resolution (as deliberated and debated, not as corruptly perverted), and inform owners about the expenditure of the money collected.

(5) If the money collected exceeds the amount required (in this case, by about half a million dollars), or for any other reason is not fully used for the purpose set out in the resolution, the strata corporation must pay (not withhold for 5 years and then spend on unauthorized decks and views for the unjust enrichment of members of the strata management team acting unlawfully in blatant conflicts of interest) to each owner of a strata lot the portion of the unused amount of the special levy (up to $10,000 in respect to Unit 409) that is proportional to the contribution made to the special levy in respect of that strata lot

User fees
110 A strata corporation must not impose user fees for the use of common property or common assets by owners, tenants or occupants, or their visitors, other than as set out in the regulations.

User fees for the use of common property or common assets

6.9  For the purposes of section 110 of the Act, a strata corporation may impose user fees for the use of common property or common assets only if all of the following requirements are met:

(a) the amount of the fee is reasonable;

(b) the fee is set out

(i) in a bylaw, or

(ii) in a rule and the rule has been ratified under section 125 (6) of the Act.

Contrary to the best interests of the strata, as revealed by comparative review of 2007 and 2010 expenditures to depreciation reports and annual budgets, a majority of the owners on council take common property for their own use continually, contrary to statutory restrictions, and avoid imposing reasonable user fees at AGMs, persistently, for decades. Instead of acting in compliance with bylaws and statute, members of the strata management team have, with shocking chicanery, refused direction to council for indemnification, tampered with motions, and misappropriated special levy funds by purposefully conflating: decks with patios, removal with work orders, reinstatement with significant changes, bylaws with rules, common property with limited common property, exclusive use with ownership, disingenuous conflict with good faith, and their own unjust enrichment with the best interests of the strata.

Unenforceable bylaws
121 A bylaw is not enforceable to the extent that it contravenes the SPA or any other enactment
NW 2671 routinely files all kinds of bogus bylaws contrary to the SPA, for example, the AGM of Apr 8/18 passed chargeback bylaw that contravenes s.158 ;This strata files repair and maintenance bylaws, without a single vote cast, to unlawfully offload the strata corporation's responsibilities under s.3 for common property and s.158 for insurance deductibles.

Bylaw enforcement options133 (1) To enforce a bylaw or rule the strata corporation may impose a fine, or do what is reasonably necessary to remedy a contravention of its bylaws or rules, including

(a) doing work on or to a strata lot, the common property (eg. building and maintaining a remedial platform) or common assets (eg. trellis planters), and,

(b) removing objects from the common property (eg. unauthorized decking) or common assets.

(2) The strata corporation may require that the reasonable costs of remedying the contravention be paid by the person who may be fined for the contravention 

(In 2009 section 128(3), which provided that an Amendment to Bylaws must be filed in the land title office within 60 days of the amendment being approved was repealed.)

Complaint

135 The strata corporation must not impose a fine against a person for a contravention of a bylaw or rule unless the strata corporation has received a complaint about the contravention. Al MacLeod falsely accused me of, and threatened to fine me for, breaching bylaws and rules that did NOT exist, for having LONG STANDING architectural glass mitigating visual assaults from unauthorized decks, acting deliberately to intimidate me and inflict added suffering and loss by maximizing the negative impact on 409 from changes to common property made contrary to s.71

then acted to change the byalws to prohibit my window decor, allowed for Georgia Title

and himself

costly me immeasurable frustration and several hundred dollars in wasted materials

Complaint against council member

136 If a complaint is made about a council member contravening a bylaw or rule, the council member must not participate in a decision made under section 135 about the complaint. Complaints I made about council presidents violating parking and nuisance strata bylaws disappeared with no trace of any decision to ignore or deny said complaints.

Property insurance required for strata corporation

149 (1) The strata corporation must (mandatory) obtain and maintain (timely) property insurance on (a) common property, (b) common assets, (c) buildings shown on the strata plan, and (d) fixtures built or installed on a strata lot, if the fixtures are built or installed by the owner developer as part of the original construction on the strata lot. (about $25,000 was paid to repair 2003 water damage self contained within Unit 227, which was by necessity a less extensive claim than to units 510 and 409, when the deductible was $1,000 in the notice given for the AGM held within 2 months of the December 31, 2002 fiscal year end and $5,000 in the notice given for the AGM held within 2 months of the December 31, 2003 fiscal year end)

(4) The property insurance must (a) be on the basis of full replacement value, and (b) insure against major perils, as set out in the regulations, and any other perils specified in the bylaws. (major peril specifically includes water damage, and this is anything but full replacement value)

 

"Deductibles in Practice"

Acting with inherent conflict of interest, Clark Wilson is, in my opinion, instrumental in developing strata industry standards that conflict with the SPA. In this case by introducing the notion that the strata can "download” the deductible to the unit owner contrary to s.158(1) by means of a bylaw that would avoid due process and the requisite burden of proof to effectively defeat the SPA, as well as oust the jurisdiction of the court contrary to s.158(2) and the principle of innocent until proven guilty.

http://www.cwilson.com/pubs/insurance/npk14/stratains.pdf  © 2005 Clark Wilson LLP  Nigel P. Kent, T. 604.643.3135.

There are 2 ways of looking at insurance deductibles in a strata's All Risk property policy, and pursuant to s.158(2), the strata must prove an owner responsible to chargeback expenses in either case. 

The first way treats major perils named in the policy as insured for full replacement value in all cases, with the deductible amount being subject to filing a Proof of Loss by the strata or owner under s.155 for evaluation by the strata corporation's insurance adjuster. This approach clearly complies with SPA. It also makes discretionary decisions not to make a claim fair and reasonable.

The other way is to treat the deductible portion as uninsured. This approach encourages excessively high deductible amounts and contravenes the SPA's mandatory requirement to provide "full replacement value insurance against major perils" as set out in the regulations. This in turn leaves damaged property unrepaired, ss shown in the Unit 409 photos below, contrary to s.159.

As above, the second way unreasonably encourages strata corporations not to file a Proof of Loss or commence a claim for recovery on the strata corporation's policy within the requisite one year period following the occurrence of loss. Which is great for churning up legal disputes, but terrible for living in peace.

Liability insurance required for strata corporation

150 (1) The strata corporation must obtain and maintain liability insurance (no claim made for actions by members of the strata management team that would amount to vandalism in a single detached home) to insure the strata corporation against liability for property damage and bodily injury.

(2) The insurance must be of at least the amount required in the regulations.

Errors and omissions insurance

151 The strata corporation may obtain and maintain errors and omissions insurance for council members against their liability and expenses for errors and omissions made in the exercise of their powers and performance of their duties as council members. (I asked council to make a claim against members of the strata management team, but it was never made, ever though the estimated loss was hundreds of thousands of dollars, and not just for one tree, but for many)

Named insureds

155 Despite the terms of the insurance policy, named insureds in a strata corporation’s insurance policy include (a) the strata corporation, (b) the owners and tenants from time to time of the strata lots shown on the strata plan, and (c) the persons who normally occupy the strata lots. (the strata did not give me access to the insurance policy and prevented me from making the claim by engaging in water damage repairs that it then delayed until after the time expired and never completed.)

Application of insurance money

157 Insurance money received under section 156 with respect to damaged property must be used to repair or replace the damaged property without delay unless the strata corporation decides not to make the repair or replacement under section 159. (insurance money could not be received when an unidentified member of the strata management team decided not to make the claim or complete the repairs, leaving 409 with all this unrepaired water damage from Unit 510)

Insurance deductible

158 (1) Subject to the regulations, the payment of an insurance deductible in respect of a claim on the strata corporation’s insurance is a common expense to be contributed to by means of strata fees calculated in accordance with section 99 (2) or 100 (1).

When properties like units 409 and 510 are insured for a named peril like water damage, changing the strata's deductible from $500 to $25,000 does not prohibit making the claim, nor does it deprive owners of full protection or strata lots from replacement value repairs.

(2) Subsection (1) does not limit the capacity of the strata corporation to sue an owner in order to recover the deductible portion of an insurance claim if the owner is responsible for the loss or damage that gave rise to the claim.

Subsection (2) serves a purpose. First, people in Canada are innocent until proven guilty. Second, untrained volunteers make mistakes and some members of council like to keep their strata fees artificially low, creating an inherent conflict of interest. Third, most members of council are prohibited from practicing law without a license, for good reason.

The bottom line is, strata bylaws cannot make an owner responsible for the deductible, as it takes due process in court to determine responsibility. The SPA requires the strata to meet the burden of proof; it is not the other way around.

(3) Despite any other section of this Act or the regulations, strata corporation approval is not required for a special levy or for an expenditure from the contingency reserve fund to cover an insurance deductible required to be paid by the strata corporation to repair or replace damaged property, unless the strata corporation has decided not to repair or replace under section 159. (This strata has not got the 3/4 vote or finished repairs of the 2003 water damage to 409 pictured below.)

Decision not to repair or replace

159 (1) The strata corporation may, by a resolution passed by a 3/4 vote at an annual or special general meeting held no later than 60 days after the receipt of the money referred to in section 156, decide not to repair or replace the damaged property. (it is unlawful for the strata to fail to repair 409 by arbitrary delays, misrepresentations, and denials rather than a 3/4 vote)

(2) Subject to section 160, if the strata corporation decides not to repair or replace the damaged property, the insurance trustee or the strata corporation that receives the payment under subsection (1) of this section holds the money and any interest on the money in trust for each person who has an interest in the money, including the holder of a registered charge, and

(a) must distribute the money according to each person’s interest (pay 409 the $25,000 with compound interest), or

(b) if an application is made under section 160, must distribute the money in accordance with the order made under that section. (I would apply to the Supreme Court for an order except that I could never present evidence effectively, represent myself properly, or afford to get a lawyer to obtain the required order, and that is NO SECRET!)

Creation of sections by strata corporation
193   To create sections the strata corporation must hold a general meeting and notice must include a resolution to amend the bylaws which must be passed by a 3/4 vote. In contrast, the 2014 Depreciation Report and Morrison Hershfield's February 6, 2006 letter both confirm that the strata effectively created "sections" for repair purposes when it unfairly and unlawfully sectioned off the limited common property of 2-BEDROOM upper units from 3-BEDROOM lower units by providing prompt improvements, full repairs, and ongoing maintenance to balconies at the STRATA's expense, while excluding patios, which council conflated with unfunded, unauthorized "decks," imposing years of delay, deterioration, and downgrades from the original standard, to lower quality and MUCH higher ongoing maintenance and expense for the 3-BEDROOM OWNERS. 

This embarrassing 2018 photo shows the construction that the strata left unprotected during years of deterioration of the short board wood that I wash and paint annually, when nobody in this strata washed or painted our original long board wood for 30 years. The 40-year life expectancy of wood of the original quality could give us another 10 years of comparatively free enjoyment, but for the strata donating that wood to a salvage guy, who was so excited that it looked to me like he was about to jump up and click his heels with joy.

Expenses of section

195   expenses that relate solely to the strata lots in a section are shared by the owners of strata lots in the section

In contrast to s.195, the 2-bedroom unit members of council effected a total reversal of costs and had the strata pay major expenses relating solely to their upper units. 

In particular all of the costs attributable to prompt repairs, upgrades, and maintenance of balconies

and the 2007 construction of unauthorized extra decks on the opposite side of those very same units. 

At the same time creating unconscionable delays and significant new expenses for 3-bedroom units with patios. 

The unfairness of reverse sectioning of expenses was further expanded with new bylaws which continuously offload onto owners of 3-bedroom units the expense of painting patios annually, which never existed previously and which owners of 2-bedroom units with upgraded balconies NEVER face. THIS IS WHAT HAPPENS WHEN COUNCIL IS DOMINATED BY 2-BEDROOM UNITS FOR THE VAST MAJORITY OF TIME.

FYE-AGM	Officers	Council Members	2bed/3bed
2005 FYE 13mo to Dec13/05 AGM	Peter Slack 209 President, Louis Sutherland 401 Vice P, Geri Campbell 514 Treasurer, Lori (Mitchell) Raines 326 Secretary (Agent Joan Macdougall Bayside) Coastal Insurance Jun05-06 $12,000,000 with $2,500 deductible	Phyllis Register 213, Gord Matheson 318, Ben Abbott 320, Lori Mitchell 326 (Mar 31/05 Al MacLeod filed a claim with no cause of action for Mar 2/02 purchase of Unit 518, then laundered Halford's $10,000 in strata bank acct)	4/3
2006 FYE 14mo to Feb13/07 AGM	Al MacLeod 518 President, Lori Mitchell 326 Vice P., Peter Shuck 522 Secretary, Gordon Matheson 318 Treasurer Insurance? (Missing AGM Notice)	(Odd numbered units have 3-bedrooms, with ZERO representatives on  council dominated by 2-bedroom units)	4/0
2007 FYE 10mo to Dec12/07 AGM	Wayne Bryson 205 President, Geri Campbell 516 Vice President, Gord Matheson 318 Treasurer, Sherrill Berg 508 Secretary (Sorina Timonea Bayside 2007.05.23) (Hanne Andersen Ascent 2007.07.10) Insurance? (Missing AGM Notice)	Trevor Neuman 223, Jim Brose 402, Mae Reid 510 (3-bedroom units, who pay the most and get the least, are almost always in the minority on council)	5/2

Strata plan requirements

244 Parking stalls, garage areas, storage areas

(NO recreational sundecks are "included" as part of the common property on the "strata plan")

and similar areas or spaces intended to be used in conjunction with a residential strata lot must be included as part of a strata lot or as part of the common property (Recreation facilities are not "intended" to be used as "storage areas" for adjacent strata lots or to be on the common property as shown on the strata plan AT ALL)

Vote to cancel strata plan and become tenants in common
272 To cancel a strata plan and become tenants in common of land shown on the strata plan, a resolution must be passed by a unanimous vote at an annual or special general meeting.
Insofar as those who take common property beyond their proportionate unit entitlement interest, for their own exclusive use, without permission, for years, contrary to the SPA, without a unanimous vote, to the detriment of others, their conduct effectively contravenes s.272 contrary to the best interests of the strata corporation.

*********************

In this strata complex, the SPA's exclusive use restrictions and the strata's use of property bylaws are continually violated, while members of the strata management team persistently act in conflict with the best interests of the strata to the detriment of other owners. In consequence, trees and strata plan patios were decimated, special levy funds diverted, strata records tampered with, withheld, and destroyed, rendering directions from owners meaningless. 

Most of which can be attributed to extra decks that were added to common property unlawfully- and reconstructed by the strata in violation of s.71 with building envelope funds - while year after year members of council unfairly take more than their share without paying user fees. Conflict of interest decisions are quietly omitted from the minutes; fortunately, some of them are recorded in diagrams and photos that I posted online.

It took me a while to see far enough past Georgia Title's attacks on me to realize that if user fees are imposed and unjust enrichment eliminated, Georgia Title stands to lose the leverage that she can command just so long as she is seen as not acting in conflict concerning exclusive use of common property for decks, a high stakes issue for most members of council, particularly since Sherrill Berg diverted special levy funds for their construction in 2007.

My strata has persistently misrepresented or breached most, if not all, of the Definitions and Sections of the Act, set out below, generating dizzying distractions, while landscaped areas were preemptively replaced contrary to s.71, to the detriment of proportionate unit entitlement and fundamental security, with extra decking that is not anywhere on the strata plan.

Owners have little, if any, access to justice. Not only does the Strata Property Act lack penalty and enforcement provisions, but case law shows that those with judicial immunity apply systemic bias that defers to corrupt governance and allows stratas that use time as a weapon to routinely profit from their own wrongs under the Limitation Act.

I bought Unit 409 from the developer of Phase One, whose landscape architect planted trees between the windows of the buildings for privacy and geotechnical stability. Significant changes in the use and appearance of the common property made preemptively, contrary to the best interests of the strata, without the 75% vote required by s.71, are uniquely unfair to Unit 409, and created ongoing, continual nuisance, which is sickening to me.