Condominiums - Leaky - Court Disallowed Fines for Breach of Rental Bylaw; Owners Entitled to a Hearing #316

Feb 01, 2000



By Gerry Neely
B.A. LL.B.

Two strata owners, who were faced with a rental bylaw limitation, rented their condominium to their adult children without seeking permission from the strata corporation. At various times over several years, permission to rent was denied, then given, and then denied. The owners tried unsuccessfully, in a poor market, to sell their unit, which was located in a building showing signs of water damage. Eventually, fines were imposed. They exceeded $10,000 at the time the owners applied to the court for cancellation of the fines. The owners also applied for an order that the strata council's failure to give them a hearing was oppressive. In turn, the strata corporation applied for an injunction to restrain the owners from leasing the unit to their children.

The judge cancelled the fines on the basis that, to enforce the bylaw, the strata council should have applied earlier for the injunction. Considering the history of the problem, failing to do so led unreasonably to the accumulation of fines.

The judge also said the owners were entitled to a full and fair hearing of their appeal based on hardship. To do this, the judge had to overcome a 1985 decision of the BC Supreme Court. The decision held that economic hardship alone wasn't sufficient to establish the type of hardship that justified an appeal of a rental limitation bylaw to the strata council.1 The judge did this by accepting that economic hardship, combined with a leaky condo problem, required the strata council to not unreasonably refuse the owners' request for an exemption from the rental bylaw limitation.

It is interesting to speculate whether this reasoning would also apply to an owner attempting to sell in a poor market.2

  1. Von Scottenstein v. Strata Plan 730 (1985), 64 B.C.L.R. 376.
  2. Willson v. The Owners, The Highlands Strata Corporation (Strata Plan LMS 222), SCBC, Reasons for Judgment, November 26, 1999.

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