Strata Council Has Received a Bylaw Complaint, Now What?
There is often confusion as to the strata council's role when owners are in a dispute and the bylaws are involved.
Common incorrect reactions from council are:
- This is a dispute between neighbours, council doesn't want to get involved.
- The neighbours should just talk to each other and they would be able to sort out their issues.
- The issue is too petty for council to get involved.
- Council doesn't believe that the issue is worth investigating, or other similar reasons.
Or any combination of the above.
The biggest incorrect reaction from council is to do nothing. That is not an option under the Strata Property Act. Many strata council's would be surprised to learn that they have an automatic obligation to deal with every single bylaw complaint when they come in, now matter how petty, or how frequent. Ignoring bylaw complaints is not the answer.
Not every bylaw complaint will require action, but all require attention from the strata council.
So, the question then is, council received a complaint, now what do they do?
The answer is, follow the procedure in the Act, as a starting point. Following that procedure is important for 2 reasons. First, if the bylaws have been breached and council wants to eventually collect fines or bylaw enforcement costs, they must follow the procedure. Failure to follow procedure will invalidate all fines and chargebacks. A potentially significant financial loss.
Second, following the procedure helps council prove that it carried out is bylaw enforcement obligations.
The relevant section of the Act is section 135:
A good starting point when a complaint is received, is to assess the complaint. Does council have enough details? If not, council should ask the complaining owner to provide more details (or particulars) of the complaint: who, where, what, the bylaws involved, etc.
send a notice of bylaw complaint to the owner complained of. If A complains about B to the strata council, the council sends a letter to B advising B of the complaint and council provides as many particulars as possible: what bylaw they may have breached, what they did that may have breached the bylaws, when, where, and as many other details as council can provide. The letter from council must advise B that B has a right to respond to the complaint, in writing or request a hearing in front of council. There is no set deadline in the Act as to when the owner has to respond. A common deadline is 14 days from the date of the notice letter.
Council has to be very careful in how they word the notice letter so that it is clear that council is still investigating the complaint, they have not made any decisions on whether the bylaw(s) was breached, and not made any decision regarding enforcement, such as fines. Pre-determining the issue can and will invalidate any fines, etc.
Next, council waits for a response from B. If B responds and/or asks for a hearing, council now has both sides of the story.
Once the deadline has expired council must make a decision. The decision will depend on: what information has A provided about the breach, how did B respond (if at all), and who council believes if there is differing stories.
If council finds that the bylaw was breached, the next decision council needs to make is: what to do about the breach? Not every bylaw breach needs to attract a fine. Council has discretion and flexibility in how the bylaws are enforced. Fining the owner is an option, but not required in all cases. If a fine is levied, the maximum is set by the strata's bylaws (and the legal maximum in the Act).
Council should keep in mind that the point of bylaw enforcement is to obtain compliance with the bylaws. If the owner is no longer in breach, fines may be inappropriate. However, if the owner keeps breaching the bylaws despite fines, the strata may need to escalate and seek legal advice on what further enforcement is required.
Sometimes, council will need more information than the complaint and the response. Council may have to investigate the issue further. This is typically required when the issue is noise transfer between strata lots, or cigarette smoke or smell ingress into A's strata lot. The noise, cigarette smoke or smell may not be easily detectable. In those cases, in light of ongoing complaints, council has an increased obligation to conduct appropriate testing. In determining who should pay for the cost of that testing, council should seek legal advice.
In some cases, the owner received a few thousand dollars in damages against the strata council for the strata's failure to investigate and enforce a bylaw complaint. Ignoring bylaw complaints get expensive for the strata and it increases the acrimony between owners when the issue drags on.
As always, if a strata has questions about the bylaw enforcement process, legal advice is recommended. Also, the Civil Resolution Tribunal has great information on its website and can assist the strata with writing letters to owners with its solution explorer: https://civilresolutionbc.ca/
Taeya Fitzpatrick has specialized in strata law for most of her practice, has won cases for her clients in the BC Supreme Court, the BC Court of Appeal, and assisted with a client succeeding in defending a Civil Resolution Tribunal claim. Taeya offers full services to a strata corporation or a strata owner from redrafting the strata’s bylaws, collection of outstanding strata fees or other charges, issues with bylaw enforcement, to amending the strata plan. For more information on the services provided, you can reach Taeya by email, phone: 250-762-6111, or at her Web Page.