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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Accuracy of an Owner’s List & Records

Our strata corporation has 158 residential units and at our recent annual general meeting we had complaints from 10 owners that they had not received the notice package. Luckily a council member posted a reminder in the elevators a week before, so they showed up at the meeting. After the meeting we had emails from 7 other owners claiming they did not receive the notice package and as landlords they should have been mailed a notice package to the alternate address they provided for meeting notices and correspondence. When council double checked notice information we discovered the addresses were dated by many years. As a result of changes from several management companies the following companies inherited less reliable lists each time. We only 42 votes represented at the meeting so did not meet the quorum minimum but our bylaws declare a meeting is call to order within a half hour by those who are present in person or by proxy. The problem is, we voted on 2 contentious bylaws and a special levy and now several owners are challenging the validity of the meeting. How do determine if our owner’s list is accurate? V.A. Lee, Richmond

Dear Ms. Lee: The accuracy of owner’s lists, notice/mailing lists and the schedules of unit entitlement and voting entitlement are essential if the strata corporation intends on conducting business in a fair manner, to comply with the legislation and avoid complaints or actions in the Civil Resolution Tribunal (CRT) or the Courts. While there may be ownership changes resulting in unintended occasional inaccuracies, 17 incorrect addresses indicates a serious problem with your records. Provided a strata corporation has not removed or altered Standard Bylaw 4 “Inform the Strata Corporation” of ownership or tenancy changes, an owner must give notice to the strata corporation within two weeks of becoming an owner and informing the strata corporation of their name, strata lot number and if there is any mailing address outside the strata corporation.

The same conditions apply in the circumstance of a tenancy, requiring the strata lot owner to provide a signed Form K Notice of Tenant’s responsibilities, within two weeks of renting all or part of a residential strata lot. If the owner/landlord intends on receiving notice at a separate address or supplying an email address for the purpose of receiving notices they must provide that information to the strata corporation as well. Failure to issue proper notice could result in your motions being overturned or an order for another meeting. A potentially costly mistake for your strata. Start with a complete review of your owners’ list and inform your owners of the necessity to update the owners’ list for accuracy. Review copies of any Form K’s that have been provided to the strata corporation for tenancies, and copies of any Form C Mortgagee’s Requests for Notification. Incorrect owner lists may also result in ineligible persons being elected to council, votes being cast by ineligible voters at general meetings, or a failure of the strata corporation to provide proper notice to an owner prior to enforcing bylaws, filing liens for collections or issuing notice of court or CRT disputes, or notice of any general meetings that may have a serious impact on the outcome of your decisions.

I know from recent experience that prior to issuing a notice for a special general meeting for a strata corporation to proceed with an 80% vote to wind up the strata corporation, it is mandatory the owners’ list is accurate. An owner who is not represented in person or by proxy for 80% and 100% votes is automatically a no vote. Most important, how do you verify the owner or eligible voter if the owners’ list is not accurate?

This may be a prudent time to conduct title searches on all strata lots to ensure accurate information is maintained by the strata corporation. In light of the many property management changes in your strata corporation, obtain official documents representing owners’ lists and notification requirements, the registered strata plan, the schedules of voting entitlement and unit entitlement

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Who manages alterations to common property?

: We would like to share a recent decision made by our council which seemed appropriate at the time. Given the bylaws, the type of request to alter common property and the advice of our manager to require the owner to sign an alteration indemnity we assumed it couldn’t be more iron clad. We were very wrong. An owner requested permission to install a skylight in their penthouse unit. They agreed to the conditions we set out and to assume any costs relating to the alteration. Our basic conditions were a requirement to use a credible contractor and contact our roofing company to ensure there were no warranty issues. That was back in April. We have since had rain on a few occasions and discovered the installation was not done correctly. The contractor was an unlicensed renovator from the back of his van and we are plagued with leaks and damage to the building. In future our council has decided no more alterations to the exterior of the building. Even if we are successful in recovering the costs, the stress and disruption this has caused to all of the owners and council is not worth it. We definitely support the position that common property is owned by everyone, everyone shares in the responsibility and no one should be entitled to alter the area for their own benefit at the risk of the owners. Frederick W. Kelowna

Dear Frederick: Owners should not be permitted to alter common property without the close scrutiny and supervision of the strata council. If an owner wishes to make an alteration to the common property or a common asset, the first discussion/request to council needs to include not only a detail of the scope of the alteration but a clear understanding of who is going to perform the alteration. The natural tendency of owners is to take short cuts and reduce costs wherever possible. I am yet to find an owner who chooses the best contractor over the cheapest.

Over the years I have spoken to many strata councils facing obstinate owners who believe they have the right to convert a window to a door, install a skylight, enclose a balcony or remove structural walls within their units. When owners do their own alterations, it ultimately results in a failure to meet building codes, numerous WorkSafe violations, reduced or comprised (edit from TNL): compromised. standards of construction, hidden errors or modifications, and a lack of accurate reporting to the strata corporation of what was done.

Owners may still request alterations to common property; however, the best solution and protection for the strata corporation and your owners is to insist the consultant and contractor must be selected or previously approved by the strata corporation before any construction begins. Because there are building code and safety implications to many alterations, a qualified consultant may be necessary. There are several strata corporations who have adopted stringent alteration bylaws that permit alterations to common property; however, they require the strata corporation to manage the scope of work, negotiate the construction documents and legal agreements, obtain permits, select contractors, determine if the alteration is significant and requires a ¾ vote of the owners at a general meeting, and require the owner provide full payment in advance of construction. This is the only really fail-safe method of ensuring the work is done to a reasonable standard and everyone is protected. Real estate flippers are the most common offenders of unauthorized work and our most common complaint. Their focus is profit and reselling the condo as soon as possible often with a total disregard for the strata corporation bylaws or their fellow owners.

Under the Standard Bylaws and most bylaws adopted by strata corporations, a strata council does not have to grant permission to alter common property. Before you approve an alteration to common property, do you know who is going to pay the bills if something goes wrong?

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Sections, Types, Air Space Parcels

: Could you please explain the difference between sections, types, and air space parcels to our strata corporation of 171 units? Our property manager is insistent that if the residential and commercial agree, we don’t need to have a joint section council or meetings. We understood there was no choice. We have commercial offices, residential units and a restaurant. Since we started operating a few years ago, this has been a constant source of confusion over how bills are allocated, how decisions are made and who has voting rights at different meetings. K Vancouver

Dear K: There is no such entity as a joint section. A strata corporation is created when the strata plan is registered in the Land Title Registry. It shows the boundaries of strata lots, common property, limited common property, residential and non-residential strata lots. The strata corporation must operate in full compliance with the Strata Property Act, Regulations and any bylaws as amended by the owner developer or the strata corporation. In some circumstances there may be minimal operating obligations for the strata corporation, but any common expenses such as insurance or any operating or utility costs not exclusive to a section, are approved in the annual budget of the strata corporation and the strata corporation must elect a strata council at their annual general meeting (AGM).

Think of your strata corporation as the Province of BC. Sections are created through the bylaws and they are like the municipalities within the province. Those common exclusive expenses, bylaws and matters that affect only the strata lots identified in the section bylaws are approved by the section, in your case the residential strata lots, and administered by the executive council elected at the AGM of the residential section. The same applies to the commercial section(s). In basic terms a section can do anything a strata corporation can do, but within the entity of the corporation; however, they are all separate legal entities. What this really means is you have 3 separate management contracts, 3 budgets, 3 councils, possibly 3 sets of bylaws or other matters that would be exclusive to one of your sections.

One of the common misconceptions applied to sections, is that costs may be allocated between sections based on the formulas filed in the bylaws. If the expense is not a sole expense of a section, then it is an expense of the strata corporation and shared by everyone. The amount or ratio of cost is irrelevant and bylaws cannot reallocate common expenses.

Types can be administered within the strata corporation or a section and they apply only to operating costs. For example, if only 25 units had access to natural gas for heating and fireplaces, the strata corporation may adopt a bylaw that creates the classification of types and only those 25 strata lots would pay for the gas based on their relative unit entitlement. Types are a simple method of allocating an operating cost only to those entitled users without the need for a higher level of administration.

I have reviewed your registered strata plan and documents and have discovered an error in how your strata corporation and sections are being administered. The restaurant is not part of your strata corporation. If you look closely at your registered strata plan you will see it is a separate property, partly under your building, where an air space parcel agreement was created. An Air Space Parcel Agreement (ASP) is an easement/contract filed on the Strata Corporation General/Common Index that defines how multiple property owners share use and liability of properties within the same air space.

Your ASP sets out use of parking, shared cost formulas for joint areas and terms for shared liability. In your ASP the restaurant owner has no voting privileges or rights to attend your general meetings of the corporation or sections, even though some of your current general meetings indicate they were at the meetings, made motions and voted on matters.

It would be valuable for your strata corporation to speak with a lawyer to explain the formulas and obligations of the ASP to ensure the fees and allocations of costs and use are being properly administered. Go to www.choa.bc.ca and type in the search “Understanding Air Space Parcel Agreements” for an extensive guide on the subject.

Sincerely,

Tony Gioventu, Executive Director
Condominium Home Owners’ Association (CHOA)
website: www.choa.bc.ca

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Who decides a proxy is valid or not?

Dear Tony: I recently attended the Annual General Meeting of our strata corporation and was given 2 proxies from my neighbours. When I registered to vote for myself and the 2 owners, I was told by the property manager that my proxies were not valid because they were not the proxies issued by the strata corporation with the notice. I pointed out the legislation makes no such requirement but he refused to issue voting cards for the two owners. When the meeting was called to order I raised this matter with the chair as a point of order and the chairperson said the decision had already been made by the property manager before the meeting started and it was out of his hands. We had one controversial resolution for a communications lease that was passed by one vote, and had my neighbour’s proxies been allowed, the resolution would have failed. Was I correct in my understanding of the Act that we don’t need to use the proxy the strata corporation issues? Most important, who has the authority to determine whether a proxy is valid or not? We were feeling bullied by the property manager.

Michael J., Richmond

Dear Michael: Strata corporations may issue an optional proxy form when they send out their notice of meeting; however, a proxy in any written form is still valid if it is in writing and signed by the person appointing the proxy. While it is not necessary, the proxy should also identify the strata lot number or unit number and the strata plan number so it is easy to identify the owner assigning the proxy from the owner’s list. Many owners and investors who do not reside in the city often issue general proxies to their representatives or agents who act on their behalf. These proxies could endure for a number of years and are not required to be in the form that was issued by the strata corporation or a separate proxy for each meeting. The proxy is the property of proxy holder and the owner, and is not collected at the time of registration. It may contain special instructions to the proxy holder on how the owner wishes them to vote, or it may contain restrictions which the registrar of the meeting will have to record on the registration records to enable the chairperson to identify if any eligible voter by proxy has been imposed any restrictions.

At the point of registration, owners register and are issued a voting card. Any person eligible to hold a proxy registers for those units they have been given a proxy and are issued a separate voting card for each proxy. To ensure accuracy, it is ideal if the voting cards identify the strata lot number for each registered owner and proxy. This is essential in strata corporations with commercial units as each commercial unit has a different vote allocation based on the size of the strata lot and commercial units are generally not counted as 1 vote per strata lot. If there is a discrepancy with a proxy at the time of registration, that proxy is held to the beginning of the meeting when either the president or vice president chairs the meeting, or a chair is elected. There are only two parties with authority to make decisions at general meetings. The voting quorum who vote on resolutions and the chairperson of the meeting who convenes the meeting, establishes the validity of proxies and procedures and is required to determine whether an amendment to a three-quarters, 80% or unanimous vote is permitted. Even then, the eligible voters present in person or by proxy have the ability to challenge a decision of the chair. When people make claims of authority at general meetings, challenge them to provide evidence.
If the owners who issued proxies wish to challenge the decision of the property manager and chairperson as their eligible votes were denied, they could make an application to the Civil Resolution Tribunal. Go to www.civilresolutionbc.ca

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