Caretaker & Guest Suites

Our strata corporation has a caretaker suite in the building that has not been used in 8 years. Our building is coming up to some major upgrades and we are considering selling the suite to pay for the elevator upgrades. We were told that because the suite was part of the original development marketed by the developer, we could not sell the suite. Is a strata corporation permitted to sell a common asset? In addition to the proceeds from the sale we would also have one more owner contributing to the special levies so it would also be a significant financial benefit to our owners. JJ R. – Burnaby

Dear JJ: Before a strata corporation considers selling an asset like a caretaker’s suite or a guest suite, the corporation must consider the designation of the property and determine if there are any encumbrances against the property. There are many strata corporations across the province with a caretaker’s suite or guest units, but they may be either strata titled or simply common property. If the units are a separate strata lot, and they are not restricted by any covenant of use, the procedures are straight forward. The strata lot is an asset of the corporation and the owners must approve the sale of the strata lot and determine how the proceeds will be used by a ¾ vote approved at a general meeting. To ensure the council has the authority to proceed with the marketing and transaction of the suite, legal advice on the preparation of the ¾ resolution is essential to establish the terms and conditions of a listing agreement, the price and negotiating authority, terms and conditions of a sale and any limitation on time periods. It is also advisable to search the title of the strata lot to ensure there are no reciprocal easements that restrict the ability of the corporation to liquidate the suite. In your strata corporation the caretaker suite was not created as a separate strata lot. It is common property as shown on the registered strata plan. The strata corporation is not permitted to sell common property so your only option would be an amendment to the registered strata plan, including the schedule of unit entitlement and voting rights. An amendment to the strata plan will require the approval of a unanimous resolution of the owners, and application to the local approving officer which is the city of Burnaby, the approval of the Superintendent of Real Estate and the approval of the Registration of Land Titles. Because this is also a subdivision of common property it will also require the consent of interest holders. If the asset is common property, your first step is to obtain the approval of the owners at a general meeting to fund a legal opinion of the proposed conversion and sale to determine if the change is permitted, the probable costs, and the sequence of decisions and approvals necessary for the transaction. Several strata corporations have successfully proceeded with sub divisions of common property and conversions of common suites to strata lots; however, it requires 1-2 years to negotiate the approvals and obtain the consent of all owners and interest holders. Depending on the complexity of the amendments and approvals the cost for legal services could easily reach $25,000. It may be valuable to survey your owners or hold an information meeting before you proceed. No point expending time and money if your owners are opposed to the idea.

Tony Gioventu, Executive Director CHOA

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What will happen to rental bylaws?

Our strata is a 12-unit townhouse complex in Coquitlam built in 2002. We are deeply concerned by the government planning to remove rental restriction bylaws from condos in BC. We permit 2 rentals and the two rentals have been nothing but a source of chronic problems for our volunteer council. Hiring a management company to deal with the ongoing issues is simply too expensive for a small strata corporation and with the elimination of rental bylaws we will simply be left with more tenants and a smaller group of owners left to self manage our corporation. So, because the government has not planned for housing expectations and local governments have allowed developers to run rampant on development with no rental commitments, the government has decided to download the problem on to the consumers who form the back bone of our economy. Even though we are small, we still have the same duties and liabilities as a 200 unit strata council a block away, but we will not have the financial resources to fight the constant tenant battles that arise. There is nothing in the legislation that compels a landlord to participate in the operation of a strata corporation, and the removal of a tenant or the enforcement of bylaws and tenancy laws is a joke. We have discovered from the Residential Tenancy Board that as a council we do not have standing in the landlord and tenant relationship as we are not part of that agreement and therefore cannot evict the tenant. Considering we are and have always been a 100% occupied property, how does eliminating rental bylaws solve a housing problem. Karen M.
Dear Karen: The government has not yet made any decision on whether to repeal or amend the legislation that would change rental bylaws for strata corporations. The task force that was struck by government has recommended the repeal of rental bylaws; however, in spite of the detailed research and opposition provided chose to proceed on an independent agenda and not acknowledge the impact this will have on strata owners and residents in BC. Under the Strata Property Act and the previous Condominium Act, strata corporations were permitted to adopt bylaws that either prohibited rentals or limited them to a specific number or percentage. In addition, family members who were the children or parents of the owner or the owner’s spouse were exempt, owners who provided evidence of a reasonable hardship to their strata council were exempted and prior to January 1, 2010 the first owner was exempted by a developer rental exemption, and since January 1, 2010 any strata lot that was identified as exempt by the owner developer was exempt for the period listed. With few exceptions every strata corporation since 2010 has been exempted from rental bylaws. As more than half of the strata corporations in BC are less than 50 units and over 90% are self managed, it would be safe to assume that in the event rental bylaws are removed, every volunteer strata council in those properties will be responsible to deal with the additional tenancy issues in the event rental restriction bylaws are removed. In 2017 CHOA conducted a direct building study of 8 buildings that were exempted from rental bylaws since 2010 and 8 comparable buildings that were developed prior to 2010. The 8 buildings constructed since 2010 have no rental bylaws and have a vacancy rate averaging 30%, with the majority of the unoccupied units being used by investors or for short term vacation rentals. Clearly rental play no role in the matter of occupancy in these buildings, in due largely to the value of these units and the cost to make rentals feasible. In the 8 buildings that were constructed prior to 2010, most with rental bylaw limits, not restrictions, the vacancy rate is below 2%, most of which was accounted for by transitional ownership. This is consistent across the province. How would removing rental bylaws increase rental inventory in an already extremely vacancy? Before the government makes a decision on terminating rental bylaws it is essential, they provide assurances to the public how the removal of rental bylaws will affect occupancy, provide more rental housing, and the change in legislation will not create an operational nightmare for smaller strata corporations. There is no evidence that indicates rental bylaws reduce rental housing availability to the public when the properties with rental bylaws already have the lowest vacancy rates in the province. The changes to the legislation will have a dramatic affect on property use, open all properties to speculators, investors and developers, especially in retirement communities that are also vacation resorts, affecting senior communities contrary to the government policy of keeping seniors in their own housing as long as possible. The argument that other provinces do not permit rental restrictions is not based on comparable legislation. No other province permits the strata titling of duplexes and small townhouse units, compelling owners to collectively manage all property. BC has over 30,000 strata corporations, over 22,000 of them will be affected by this change in legislation. It is important to voice your opinion as an owner, investor and strata council member. Contact your local MLA and contact the Minister Responsible for the Strata Property Act. The Honourable Selina Robinson, Minister of Municipal Affairs & Housing, Room 310 Parliament Buildings, Victoria, BC V8V 1X4 selina.robinson.mla@leg.bc.ca

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The trouble with Christmas trees

we are at an impasse with our strata council over Christmas trees. Our bylaws permit holiday decorations for festivals throughout the year with a condition that they must be removed within 10 days of the festival and cannot cause a nuisance to neighbouring units. This has been easy to manage in a high rise. The dispute arises from Christmas trees. Trees are not prohibited, but we are prohibited from carrying Christmas trees through the lobby, the hallways and parking garage. Technically speaking, only the ground units and townhouses with street access could have a tree. The council refuse to respond whether they will enforce this bylaw, so how do we know whether we can have a tree or not? Janine B.

Dear Janine: strata councils really have little choice when it comes to the enforcement of bylaws and rules. Under the Strata Property Act, the corporation must enforce their bylaws and rules, but may apply fines and penalties. It would be safe to assume that if you drag a tree through the hallways to your unit and are caught in the act, the council will enforce their bylaws. They may impose a fine after they have gone through the enforcement process and may impose recoverable costs for damages and additional cleaning services. If the strata council do not enforce the bylaw, any owner or tenant may commence a Civil Resolution Tribunal complaint to order the strata corporation to enforce its bylaws.

I am a big fan of live Christmas trees and holiday decorations for all types of festivals throughout the year, but we have to be realistic about potential damages, risks and disruptions to our neighbours. Neglected trees are a serious fire hazard. No one wants a condo fire over the holidays. Never use candles on a Christmas tree. If the trees are not wrapped and bagged properly at the end of the season the branches will damage walls and the needles may jam elevator tracks. We can always rely on at least 1 owner or tenant dragging their tree through the hallways and neglecting the assigned pick up date, leaving the tree in the garbage room or in the lane for someone else to manage. My dreaded looming disaster is the owner or tenant who can’t be bothered with proper tree removal and tosses it off their balcony often resulting in property damage or a dangerous injury risk.

If your building permits live trees, a good supply of tree bags, available to the residents will greatly reduce the damage and mess that follows. Before you buy that perfect tree and drag it upstairs, check your bylaws and have a safe and happy holiday.
Tony Gioventu, Executive Director CHOA

Note from David Payne of Terra Nova Landscaping…..why would you want to bring bugs into your unit?

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Drainage lines in a building

: Our strata corporation is a mid rise apartment building of 12 floors constructed in 2002. I live on the 4th floor and since August have had chronic issues with soap suds in my kitchen sink and slow drainage in my tub. I recently had a back up into my unit causing significant damage including destroying the original carpets and the kitchen cabinets. The strata council and property manager told me to hire a plumber to snake out my lines and clear the clogs. I was advised this would be my cost as the amount was below the strata insurance deductible. This seems very unfair. The plumber identified the clog was almost 35 feet from my unit and likely in a main line. He provided me with written detail of the information to provide to my council. The council are still denying it is their problem. I have also heard from several other owners between the 1st and 8th floors they are also having the same concerns and have written letters to the council complaining about drainage problems. I thought the drainage piping in the building was the responsibility of the strata? Shouldn’t it be the responsibility of the strata council to maintain this system? Holly B. Burnaby

Dear Holly: You are correct. Here is the definition of common property from the Strata Property Act that every strata council, manager and owner need to understand. Common property means: a) that part of the land and buildings shown on a strata plan that is not part of a strata lot, 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, if they are located (i) within a floor, wall or ceiling that forms a boundary (A) between a strata lot and another strata lot, (B) between a strata lot and the common property, 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. In your strata building, as in most apartment style buildings the drainage systems under the definition are common property. The strata corporation must maintain and repair common property and this includes frequent clean outs and flushing of drainage systems. Drainage systems for roofing systems and internal discharge should be cleaned at least every 2-3 years or more frequently depending on the nature of use and exposure. Because strata councils and managers frequently change, it is common to forget about maintenance if the strata corporation does not maintain a written operations plan. If a strata corporation is properly maintaining their building systems, they will have a schedule of annual maintenance services. These schedules are essential for budget planning as well. Owners are entitled to request copies of the correspondence between owners and the council relating to the drainage complaint. This is will help identify if the strata corporation has responded to common property failures. You may request copies of maintenance or service calls identifying whether the corporation actually maintained the drainage systems of your building. The maintenance of common property is the responsibility of the strata corporation and not downloaded to an owner. If an owner, as a result of inappropriate use or misuse is responsible for a claim or damages, the strata corporation may recover those costs from the owner. Owners may commence a claim with the Civil Resolution Tribunal to recover their costs in the event the strata corporation has been negligent in maintaining and repairing common property, or seek an order for the corporation to maintain the common property.

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Who is responsible for decks?

: Our strata corporation has a bylaw that says the owners must maintain and repair limited common property. Our balconies are designated as limited common property, and this summer the strata hired a company who washed our siding and then power washed every balcony, deck and patio area. Now several owners are concerned about the damage caused by the power washing, and several leaks have shown up from torn deck covers to the units below. The strata council said its our problem to get the deck membranes repaired or replaced as the bylaws require owners to maintain and repair common property. The decision of council to have decks power washed was challenged by several owners who were threatened with a police complaint at the time if they interfered with the contractors. Our strata president and treasurer are both bullies and virtually no experience. Because the damage was obviously caused by the carelessness of the contractor and the council, why should owners do these repairs. Lynn R.

Dear Lynn: This is a common misunderstanding of how limited common property bylaws are applied. Like the Standard Bylaws of the Strata Property Act, your bylaws require owners to maintain and repair limited common property (LCP) that occurs once a year or more frequently. It also requires the strata corporation to maintain and repair all decks and balconies on the building for those items that occur less than once a year. Your strata council obviously tried to take the cheap route and does not understand your bylaws. It was the responsibility of each owner to wash their LCP surface, clear drains, and ensure the area is not damaged by their use. The strata corporation is responsible to replace the deck membranes when their life cycle is finished, as well as replacing them if they were damaged by the contractor hired to wash down your building. It is possible to amend the bylaws to make owners responsible for the LCP areas such as the decking; however, every time a strata corporation attempts to down load the responsibility and authority to repair and maintain out door components is disastrous. We live in condos so we don’t have to clean the gutters, cut the grass, paint the siding, wash the windows, shovel the snow. Condo owners don’t do exterior repairs, and if they try, the results are generally improper or insufficient. If your owners are maintaining their decks provide them with instructions to ensure they are not damaging the property. Power washers if managed with the correct pressure and proper skills may be safely used to clean building surfaces; however, soft membranes with waterproof seams, and caulking around doors, windows and deck membrane flashings are extremely vulnerable to damages. The spray from a garden hose is often more than sufficient with soft brushing. Before you aggressively wash your building surfaces, contact the manufacturer or installer of the deck membranes. They should be able to provide you with maintenance instructions, along with a list of cleaning products or chemicals that may be safe to use on the deck surfaces and safe for the environment. Before exterior maintenance is downloaded to your owners, check your bylaws to determine who is responsible.

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Tenants on Council

Dear Tony: Is a tenant permitted to be elected to strata council? Our strata corporation has struggled to elect the minimum number of council members and at our AGM. In October 2 tenants came forward and offered to be elected to council. They provided written consent from the owners of their strata lots. But several owners objected. Insisting they had to be owners. We only managed to elect 2 council members. So we are having another general meeting in December to elect more. It would be very helpful if the tenants were permitted on council. Cally W North Vancouver

Dear Cally: Yes, tenants may be elected to council if the owner of the strata lot has provided a written assignment of their rights for the purpose of being elected to council. A landlord may assign to a tenant some or all of the powers and duties of the landlord that arise under the Strata Property Act, the bylaws or the rules, but may not assign to a tenant the landlord’s responsibility for fines, damages and insurance deductibles or the costs of remedying a contravention of the bylaws or rules. The assignment is not effective until the landlord gives the strata corporation a written notice stating all of the following: (a) the name of the tenant to whom the assignment is made;(b) the powers and duties that have been assigned;(c) the time period during which the assignment is effective. Family members who are tenants are also eligible for the similar assignment and permitted to be elected to the strata council. When an owner rents their strata lot to a tenant, or family member defined by the Act, they are required to provide the strata corporation with a Form K signed by the tenants understanding they have received a copy of the bylaws and rules. The form is essential for a strata corporation to manage the owners and tenants list and report their rental inventory. The form may also include any written assignments for the tenant or family member to be elected to the strata council.

In addition to tenants, a strata corporation is also permitted to amend their bylaws to permit other classes of persons to be elected to council. In strata corporations with aging populations where owners are unwilling to serve on council, the strata corporation may amend their bylaws to permit the family members of owners elected to the strata council, if the owner provides written consent. The bylaws may also consider the appointment of other types of persons such as business professionals to serve a specific purpose. Remember that only the owners at a general meeting may elect additional council members. The number you elect at your annual general meeting may only be increased if the strata corporation holds another general meeting for the purpose of electing additional council members.

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www.CHOA.BC.Ca

This website is invaluable for British Columbians living in stratas

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Who Has My Keys?

: Without the knowledge of most owners and tenants in our complex, our strata council is holding a master key for every unit and insist that when anyone changes ownership or occupancy the key must be changed to include the master key system. At our annual general meeting last week, the president of council who was accused of misusing keys and entering an owner’s unit without permission or notice, was not re-elected to strata council. This person has refused to pass over the keys to the strata common areas or the master key to the building. Our council have always struggled with the concept of a master key and once again we have a good reason to eliminate the master key access. Does the strata council have a right to demand owners provide keys access to their units? Doreen C.

Dear Doreen: No, the strata corporation does not have the authority to demand a key or maintain a master key access. Your strata council should immediately advise your owners and tenants of the breach in security, and contact your lawyer to ensure the past president is notified of the security breach and the liability he is exposed to. If he does not immediately return the keys, it may be necessary to re-key everyone’s strata lots and the common areas and file a claim with the Civil Resolution Tribunal (CRT) against the past president to recover the cost.
Even if the strata corporation has a bylaw regarding the provisions of strata lot keys and use of master keys, owners and tenants must consent to access. There are many strata corporations who secretly hold master keys and do not disclose that information to the strata lot owner, occupants or tenants. If you apply some common sense it is obvious that even under the most ideal circumstances, owner, occupant and tenant personal safety, security and privacy are compromised when the strata corporation is holding keys to their strata lots. If your strata council, an employee or contractor of the strata corporation enters a strata lot without consent they are essentially breaking and entering. There have been several instances in strata corporations involving investigations where valuable pieces of art, coin collections, guns and ammunition, jewelry and other personal property has gone missing from strata lots with no signs of forced entry, only to discover the strata corporation possessed master keys and not informed the owners or tenants. The other serious risk that few councils are willing to admit is there is no way to prevent the duplication and misuse of keys.

Each owner’s strata lot is their private residence, and while the strata corporation may be required to access strata lots for maintenance, or inspection under the bylaws, the owner or tenant is not obliged to provide a key. Unless there is an emergency which requires immediate access by emergency services or a person authorized by the strata corporation, no one should be permitted to access a strata lot without the consent of the owner or tenant and with proper notice that defines the reason for access, as set out in the bylaws. The Standard Bylaw requires 48 hours written notice to access strata lots, that also means the notice period of 4 days is also imposed under most circumstances. If an owner or tenant does not provide access on proper notice for a valid reason, the strata corporation has the option to enforce the bylaws, which may result in fines, the possible recovery of costs associated with delayed maintenance or servicing, or an application to the CRT to order the owner or tenant comply with the bylaws. For an information guide on keys and access, go to www.choa.bc.ca and enter “keys” into the search category.

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Landscape Equipment Noise?

So much complaining on facebook. This is what I responded with. People are suggesting their landscapers sweep every-where? Councils should request changes or equipment requirements before the contract gets signed. Come and work with us for few days when it’s blowing wind and pouring rain. And see if you get the job done with a wet broom. lol

Me: Are you willing to pay more in maintenance fees? You live in a strata. And that requires using fast and economical means to clean-up to a presentable level. Using methods that aren’t going to cause more work, repetative motion injuries, WorkSafe/WCB claims and even higher maintenance fees for every-one. The work season is almost done. And the work being done helps to decrease slip and fall injuries and strata liability costs. Good landscaping actually helps increase property value. Please :) go for a walk while the landscapers are there. And Please quit staring at them and sending bad vibes. It is a hard job, for a fact. Peace.

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