Retail Strata #305

By Gerry Neely
B.A., LL.B.

The businesses in a retail shopping centre in Richmond were carried on by owners or tenants of strata lots in a strata corporation. Its bylaws required an owner or occupier of a strata lot to obtain written approval from the strata council to make any change in the nature of the business carried on in the strata lot, unless all other "shop owners of the same trade, in active operation, agree to the proposed change."

An owner’s application to change the use of his shop to sell CDs was approved. The owner acknowledged the approval but said he intended to carry on the current business use for a further three months, after which it would be changed. However, during that period, the owner applied for approval for another business use, which he obtained.

Shortly after that the strata council approved a request by a competing owner to add the sale of CDs to an existing sale of audio and video equipment. The first owner had no notice of this approval and had leased the unit to a businessman for the sale of CDs. Upon a complaint by the competing owner, the strata council ordered the first owner to stop the sale of CDs. The owner’s request for re-approval of this use was rejected and the tenant refused to either quit selling music CDs or terminate the tenancy. Daily fines, which reached $75,465.11, were levied against the owner.

The landlord and tenant agreed to bring proceedings for a declaration that the bylaw was unenforceable. They lost, the judge completely rejecting the argument that the use bylaw was an improper restraint of trade or contravened Section 29 of the Condominium Act.

Although the owner lost on that issue, he was a winner of the challenge to the validity of the fine bylaw. It provided for a warning letter for a first violation, $50 for a second and a maximum of $150 per occurrence for further violations. Section 50 of the Condominium Act states that a fine of more than $25 can be imposed only through an amendment to the bylaws by resolution which must recite the bylaw, rule or regulation and the amount of the fine. The failure to comply with Section 50 meant that the fine bylaw was unenforceable.¹

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The Condominium Act states that owners are responsible for the repair and maintenance of their strata lots, including windows, while strata corporations bear the responsibility for the repair and maintenance of the exterior of the building, excluding windows. Does "window" mean the pane of glass only or does it include the glass and the frame? That was the question in a case where water leaked through the aluminum frames encasing the glass.

Based upon an Alberta decision, the judge concluded that it is an owner’s responsibility to keep the strata unit windows cleaned, sealed, caulked and to replace a shattered window. If it were more economical to replace the glass and frame the owner would have to pay to replace both. The strata corporation’s responsibility to maintain, repair and decorate the exterior of the buildings includes the window casing and sills. Since water was leaking through the frame, the strata corporation’s obligation was to replace it and, because it cost less to do so, to replace the glass and frame.²

	1.	Kok v. The Owners, Strata Plan LMS463, Reasons for Judgment, SCBC, April 21, 1999, Vancouver Registry.
	2.	Mackin v. The Owners, Strata Plan 1374, Reasons for Judgment, SCBC, December 17, 1998, Victoria Registry.

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