Clause One - Contract of Purchase and Sale; Condominium Bylaw #188

By Gerry Neely
B.A. LL.B

Column #160 discussed a Vancouver case where a purchaser was successful in avoiding the completion of a purchase because the vendor was unable to remove a private easement charging his property for the benefit of adjoining property easement. He was successful because clause one of the standard form Contract of Purchase and Sale required the vendor to deliver title free and clear of all rights of way, except those in favour of a utility or public authority. No exception to the vendor's obligation to clear title is made for any other type of right of way.

Another case on Vancouver Island has been reported where a purchaser refused to close because of the vendor's inability or unwillingness to remove a private right of way granted in 1936 to the owner of the adjoining property for the purpose of laying down water pipes. The purchaser was entitled to the return of the deposit because of the vendors default in failing to meet the terms of clause one. These two cases impose upon a licensee a greater responsibility to search title and to decide whether the contract should be altered to provide that encumbrances against title which cannot be removed by the vendor, should be stated as exceptions to the vendors obligation to clear title of all encumbrances.¹

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A Strata Corporation which wishes to limit an owner's right to the use of a condominium must carefully word the bylaw which imposes a restriction on such rights. A Strata Corporation approved a bylaw which prohibited visible changes to the building exteriors. The bylaw listed a number of examples of prohibited changes, including any additions or deletions of a permanent or semi-permanent nature, or the enclosure of common and/or limited common property.

An owner erected an aluminium garden shed on her patio to the dismay of the other owners who had approved the bylaw because it was intended to preserve "the exterior appearance and landscaping of the lagoon complex." When the Strata Council insisted upon its removal, the owner commenced court proceedings seeking a declaration that the bylaw did not affect her.

Since the bylaw did not specifically prohibit the shed addition, the Strata Corporation was forced to argue general principles of law to interpret the bylaw rather than looking at the plain meaning of the words in the bylaw.

One principle advanced by the Strata Corporation came from an Ontario case which the British Columbia judge discussed, but which he was not prepared to accept applied in B.C. The principle is attractive however because it enunciates what most people would agree is the foundation of compatible condominium living. That is to say, people who buy a condominium agree to be bound by the bylaws which reflect "community concerns and not the wishes of a particular owner." A bylaw which is within the power of the Strata Corporation to enact, and which is challenged as being unreasonable, can be supported by the application of this principle, if there is a clear breach of the bylaw.

In this instance the judge decided that the addition of the garden shed did not contravene the bylaw because the patio upon which it was constructed was not part of the definition of "building exterior." That definition could only refer to the walls of the building and did not extend to cover the patio adjacent to the building. Since the shed was not affixed to the building or land, it was not an addition within the meaning of the bylaw.²

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