Spotlight on types: Should the Strata Property Act contain a provision expressly enabling the creation of types of strata lots?
October 14, 2016
BY Kevin Zakreski
BCLI is running a public consultation on complex stratas. It is asking for public input into proposed changes to the law governing sections, types, and phases. For information on how to participate in the consultation please visit the Strata Property Law Project—Phase Two webpage.
This post is part of a series that spotlights issues on sections, types, and phases discussed in the Consultation Paper on Complex Stratas. To read other posts in the series please click here.
Brief description of the issue
The Strata Property Act doesn’t mention types. Instead, types are dealt with in a handful of provisions in the regulations addressing the sharing of expenses paid for with funds from a strata corporation’s operating fund and transitions from the old Condominium Act to the Strata Property Act.
The lack of an express statutory grounding for types has the potential to create uncertainty. A strata corporation’s planning using types could be met with arguments about its validity that could only be refuted after a careful and time-consuming counterargument. Should the act contain a provision that expressly allows the creation of types?
Discussion of options for reform
The committee considered two options for reform: amending the act to add an enabling provision for types or retaining the current law, which doesn’t address types in the legislation and simply sets out rules regarding the budgetary implications of types and transitions from the Condominium Act in the regulation.
A legislative enabling rule would bring enhanced clarity and certainty to the legal framework. It would limit the ways in which the validity of a strata corporation’s use of types could be challenged. An argument that the law lacks a general authorization for types would be taken off the table. A statutory enabling provision could also bring higher visibility for types, promoting their use as a potential answer to cost-sharing problems in cases that don’t call for the more wide-ranging solution provided by sections.
There are potential drawbacks to amending the legislation, which would also provide some support to retaining the status quo. First and foremost, it doesn’t appear that the lack of an enabling provision in the act is causing any concerns about the validity of types to arise in practice. Addressing concerns about validity may be premature, at best. Adding an enabling provision would lengthen the act, adding somewhat to its complexity.
The committee’s tentative recommendation for reform
The committee favours adding an enabling provision for types to the Strata Property Act for the sake of certainty. Although no one has questioned the validity of types created under the current law, any potential argument should be addressed before it can create any mischief. Further, having the legislation expressly recognize types will support subsequent tentative recommendations made elsewhere in the consultation paper, some of which call for other amendments to the act.
The committee tentatively recommends:
The Strata Property Act should contain a provision that expressly enables the creation of types of strata lots.
