27 August 2015
Strata owner cannot rely on Charter to avoid strata fees
By Ryan R. Lee, Associate, Commercial Litigation Group
The Supreme Court of British Columbia has released its latest decision in an ongoing dispute that serves as a cautionary tale for those considering strata ownership. In Strata Plan NW 499 v. Kirk, 2015 BCSC 1487, the court considered cross-petitions by a small (17 unit) strata and an owner, respectively, engaged in protracted litigation regarding fees. The strata sought judgement against the owner for unpaid strata fees and sought an order to sell the owner’s unit. The owner, in turn, sought a declaration that various actions by the strata had infringed his Charter rights.
The court found that the strata had failed to comply with certain provisions of the Strata Property Act by failing to give the owner proper notice of various meetings; failing to recognize a voter-proxy relationship; and failing to obtain a three-quarters majority vote prior to commencing its petition. The court ordered the strata to remedy those failures and, in the interim, stayed the strata’s petition.
With respect to the owner’s constitutional challenge, the court found the strata was not “government” and did not carry out “government-like” activities. The court noted that that strata relationship was akin to a private agreement and that the province “created the strata corporation to provide a means of property ownership that facilitated private community management of land or space for the benefit of all units in the plan” [para. 160]. As a result, the court held that the Charter did not apply and could not be relied on by the owner to resist unpaid strata fees.
The practical results, likely, are that the parties will continue to live under the same roof (so to speak); will continue to fight about unpaid fees; and are headed back to another round in court with the attendant legal fees and stress.
If you are in a dispute with a strata corporation, or have other questions about real estate litigation, contact Ryan or one of the other lawyers in our commercial litigation group.