Should I pay strata fees?

One of the most common questions that I am asked is whether monthly strata fees and/or special levies (collectively, “Strata Fees”) should be paid. These owners often cite reasons why they do not want to pay Strata Fees which include:

• I don’t like the strata council member “x” or the entire strata council;
• I didn’t like what happened at the Annual General or Special General meeting;
• I don’t agree with the repairs that were the subject of the special levy; and
• I don’t feel I should pay my Strata Fees because (insert problem here).

 

And there are various other excuses. So, should you pay your Strata Fees?

The short answer: yes.

The long answer: payment of Strata Fees is not optional, so yes.

Your Strata Corporation is a non-profit organization and it exists for the benefits of all owners of the Strata Corporation.

The Strata Fees are generally the only way a strata corporation can pay for common expenses, contribute to the operating fund, contingency reserve fund, or pay for unexpected repairs.

The failure to pay Strata Fees when required is a burden on the Strata Corporation. This is amplified when a strata is comprised of very few units or where there are a many owners who do not pay Strata Fees on time. A failure to pay interferes with the Strata Corporation’s ability to pay its bills or make repairs in a timely fashion.

The Strata Fees are important enough that the Strata Property Act allows the Strata Corporation to register a lien on title for a failure to pay Strata Fees. After a lien is filed, the Strata Corporation can force a sale of that strata lot to collect monies outstanding. That is a very serious remedy.

However, many people do not take payment of the Strata Fees very seriously. They often get into arrears and assume that they can “just deal with it later”.

Owners are then shocked to find out that a lien is filed and that a lawyer (like me) is threatening to go to court to sell their home. This is generally followed by anger when they find out that by not paying arrears on time, they must pay for the legal costs of registering and enforcing the lien (see Section 118 of the Strata Property Act).

The Strata Corporation has a legal duty to protect the interests of the Strata Corporation and all owners, which includes collecting arrears. As such, they have little choice but to use the legal system and pursue those owners who neglect to pay their Strata Fees.

It is tempting to use excuses (see above) as a reason not to pay your Strata Fees. If you feel there is an outstanding issue or the strata council is not acting in accordance with the Strata Property Act, then there are other remedies available. Strata council members can be removed, bylaws can be changed, decisions can be questioned in court etcetera.

However, it is wise to keep these issues separate from your obligations to pay your Strata Fees.

That way, you will avoid having to pay the legal costs associated with a failure to pay Strata Fees and the possibility that your home will be sold out from under you.

 

To find out more about our strata practice, please contact Silvano Todesco at 250-763-4323 or at [email protected].

This article has been written by Silvano Todesco, an associate at Doak Shirreff LLP. It is intended for general information purposes only and should not be construed or relied upon as legal advice. The legal issues addressed in this article are subject to changes in the applicable law and the merits of any potential claim are always fact dependent. Readers should not take legal action, or refrain from taking legal action, in reliance on the information contained in this article without first obtaining legal advice specific to their situation.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

Strata: Nuisance defined

The schedule of standard bylaws found in the Strata Property Act contains a nuisance bylaw that prohibits the use of a strata lot or common property such that causes a nuisance or hazard to another person.

Nuisance is a common issue in strata living and the word “nuisance” is a legal term.

The purpose of nuisance law is to draw a balance between the right of one party to use their land as they see fit and another party’s interest in the use and enjoyment of their land without interruption.

With nuisance, the focus is not on the nature of the conduct or proof of intent or negligence but on the nature and extent of the interference caused to another party.

The courts have defined the test for nuisance by asking whether the defendant’s use of their land unreasonably interfered with the use and enjoyment of another’s land. Where actual physical damage occurs, it is almost always an unreasonable interference. It is much harder for a court to find a nuisance where the interference results in little or damage, usually in cases involving smells, noises, vibration, or other intangible causes.

Clear as mud.

Some of the more obvious examples of a nuisance are:

• A noisy or floor i.e. hardwood;
• Smoking (any substance), smells or pollution;
• Floods emanating from another property, i.e. burst pipes
• Meth labs;
• Garbage or hording; or
• Landslides.

 

There are also some more “exotic” forms of nuisance. The courts have held that the following may constitute a nuisance:

• A home being used for prostitution;
• Jumping on a trampoline while nude;
• The noise created in a home where macaws were kept and bred.

However, a nuisance is not every minor noise, odour or nude trampoline enthusiast that offends someone. The reality of life is that there is the occasional loud noise, barking dog, or a burning smell from a BBQ gone wrong. These are not grounds for nuisance. The standard to use is that of the reasonable and ordinary person.

So if you are a light sleeper or have extremely sensitive allergies, there is no protection available through the law of nuisance.

Aside from abnormal sensitivities, the location of where an alleged nuisance takes place will be considered. For example, a quiet rural cottage area and a busy, noisy, industrial area will be held to a different standard.

So, how noisy a noise must be, how smelly a smell must be, and how annoying a nuisance must be is all relative. Again, clear as mud.

In the strata context, what can be done to avoid disputes with respect to nuisance?

Ultimately, the key is to “do unto others as you would have done unto you”. For example, if you do not want to be awoken at 5:00 AM to the sound of a chainsaw, then perhaps you should refrain from playing loud Norwegian death metal hits until 2:00 AM. On the other hand, people need to recognize that in life there will be some annoyances.

Strata councils can also assist by making sure that bylaws are drafted in such a manner as to avoid many nuisances. Properly drafted bylaws and fair, consistent enforcement of those bylaws will go a long way toward making people understand what is acceptable and control or minimize nuisances.

Similarly, owners must take some responsibility. Expect some noise or the occasional party. You do not rush off to court for minor breaches of the bylaws.

Bottom Line: in order to make life in a strata tolerable, be patient and respectful.

To find out more about our strata practice, please contact Silvano Todesco at 250-763-4323 or [email protected].

 

This article has been written by Silvano Todesco, an associate at Doak Shirreff LLP. It is intended for general information purposes only and should not be construed or relied upon as legal advice. The legal issues addressed in this article are subject to changes in the applicable law and the merits of any potential claim are always fact dependent. Readers should not take legal action, or refrain from taking legal action, in reliance on the information contained in this article without first obtaining legal advice specific to their situation.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

Calming the family storm

They say that home is where the heart is. In my experience, there is a lot of wisdom in this statement. Your happiness at home and the security of your family bond is the springboard that you leap from to tackle your daily challenges. Unfortunately when things start to break down at home that foundation often starts to crack and people are left in a very difficult place. When children are involved the stakes are even higher. It then becomes critical to have coping mechanisms.

Coping mechanisms are the behaviors, strategies and emotional regulation skills you can employ in the face of stress. They help you confront and deal with that stress. Having adequate coping strategies and knowing when and how to seek the right kind of help can make all the difference to a child going through a family separation or divorce, not to mention the parents themselves.

Sharla Schofield is a counsellor with over 35 years' experience helping parties and children through difficult times. Over the course of that time she has seen a lot and learned what kind of coping mechanisms can help people and children through family breakdown. I spoke with Sharla and was lucky enough to tap into some of her experience and tips in this regard. The most basic of these represent simple steps that you can take to insulate your family as much as possible from the conflict and stress that family breakdown or conflict gives rise to.

First, when storms appear on the horizon of your family you should take proactive steps to build up your own self-care and find resources to work through your own stress, anxiety and grief. In short, get your ship in order and batten down the hatches. This way you will be prepared so you can maximize your availability to your children and ability to be aware of, and respond to their needs, concerns and questions.

Part of that is ensuring that you have your own network of support in place. Speak to your family and friends and tell them that you anticipate some rough days ahead. Tell them that you will need their advice and support. Sometimes a good friend can make a world of difference.

It will also help if you try and keep to your routines as much as possible. Often separation involves moving and not seeing your children as often. That can be very stressful and disturbing to you and your children. Adhering to routines will give you and more importantly your children a familiar structure to their day and week and help shield the full impact of a separation.

Simply because a relationship is breaking down doesn’t mean that you can’t try and agree with your partner about some rules of the game. One such rule should be to agree not to expose the children to conflict. Try and build guidelines with your spouse about where and when you (and your family and friends) can talk privately without exposing your children to conflict. That can be difficult when emotions run hot but it is extremely important.

Another point that should be agreed to by you and your spouse is to both provide reassurance to the children that you and your spouse still love and care for them and that their needs will be still be provided for. If you have to move, build up the new location. Try your best to never speak ill of your partner, no matter what. Make sure that both you and your spouse see the children as often as possible and on a regular basis.

Finding middle ground with your spouse about anything during family breakdown can be a challenge. There are resources that you can tap to help you find a way to still communicate and work together on issues regarding the kids even in the most challenging of times. The Parenting After Separation course is a provincially funded course aimed at just that. In addition to the host of private counsellors such as Sharla available in Kelowna there are also provincially-funded counselling services with specific eligibility available through Kelowna Family Centre and Kelowna Youth and Family Services, including the children’s group, “Children of Change”. Family turmoil always takes a toll. It makes you question your basic assumptions. You are bound to experience a number of significant life changes in quick succession. It helps to have some strategies in place to brave the storm and minimize the impact on children. With the hatches battened down and the sails trimmed for foul weather you’ve got a good shot of sailing through to calmer seas.

 

This article has been written by Michael Sinclair. Michael is a family and commercial litigation lawyer at Doak Shirreff Lawyers LLP and is licensed to practice law in both British Columbia and Alberta. Contact Michael directly at 250-979-2521 or at [email protected].

This article is intended for general information purposes only and should not be construed or relied upon as legal advice. The legal issues addressed in this article are subject to changes in the applicable law and the merits of any potential claim are always fact dependent. Readers should not take legal action, or refrain from taking legal action, in reliance on the information contained in this article without first obtaining legal advice specific to their situation.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

Considering Strata living?

One of the challenges faced by Strata Corporations is the addition of first time strata owners that have lived in a single family home their entire life. These owners move into a strata complex without an appreciation of the change in lifestyle this represents. Generally speaking, the strata concept is communal living in which the majority of owners dictate and determine the direction of the Strata Corporation.

However, some owners feel that that they are the King or Queen of their own castle. Much friction is caused between owners and/or between an owner and a Strata Council when the concept of communal living clashes with an owner’s individual rights.

The general rule in a Strata Corporation is “You are all in it together”. Our courts do not generally interfere with the democratic process of the Strata Council. The idea is that those who choose communal living in Strata life are bound by the reality of all being in it together for better or worse. Personal interest must give way to the best interests of the strata as a whole. Disputes are settled through procedures set out in the Strata Property Act. If owners ignore a strata corporation’s bylaws, or the Strata Property Act, and do whatever they want, a form of anarchy may ensue.

Although these are simple concepts, some owners decide that their strata lot is their kingdom and they can do as they please, with no regard for the rules or other owners. Often, this turns simple disputes over issues such as smoking, pets, parking spots and renovations into long, expensive legal battles: common sense goes out the window when parties try to force their will upon others.

Whether a party wins or loses a legal battle is irrelevant. Often, these disputes pit neighbour against neighbour and cause unnecessary stress for other owners and strata council members. The bad feelings linger on long after the legal battle ends and life at home can be miserable.

So for those transitioning from a single family home to strata living, get informed! Do not rely on one source of information. A realtor may have good information but do not just rely on others: do your own research.

Some of the information that could assist you is the following:

1.  Speak to Council members or owners to get a sense of life (or “personality”) in the complex and if it works for you.

2.  Review the bylaws. Do they create problems for you – i.e. are you a smoker, do you own pets, etcetera; and are they outdated? Updated bylaws indicate a pro-active Strata Council.

3.  Review any engineering reports/depreciation reports recommending/detailing any major repairs completed on the building: has it been done? If not, why not? If so, did a reputable builder do the work?

4.  What is the makeup of the owners? Is it a rental building? Is it a holiday-type strata complex that is used seasonally by partiers? Or, is it occupied by owners?

 

These are just a few of the issues you should investigate before buying. Purchasing a strata lot is a significant investment. Do your homework before making the decision to buy, not only to protect your investment but to keep your expectations in line with the reality of community living. By doing this, you will be happier and be a better neighbour.

 

To find out more about our strata practice, please contact Silvano Todesco at 250-763-4323 or [email protected].

This article has been written by Silvano Todesco, an associate at Doak Shirreff LLP. It is intended for general information purposes only and should not be construed or relied upon as legal advice. The legal issues addressed in this article are subject to changes in the applicable law and the merits of any potential claim are always fact dependent. Readers should not take legal action, or refrain from taking legal action, in reliance on the information contained in this article without first obtaining legal advice specific to their situation.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.