New owners of condominiums frequently ask, “What is strata?”

Historically, the law allowed landowners to subdivide their land into two or more separate pieces. The owner of any piece of land also owned the buildings on it.

What if the owner of a building wanted to subdivide a building into several parts with separate owners? Although owners could subdivide land, the law did not easily permit them to subdivide their buildings into separately owned parts.

As I explain in The Condominium Manual, the strata concept is the solution. A strata development is a special way of subdividing land and buildings for separate ownership with common features and shared expenses.

A strata development consists of strata lots, common property and common assets. The part of the property that an individual separately owns is called the “strata lot.” Informally, we often call this part the “strata unit” or a “condominium.”

The Condominium Manual explains the condo concept and how the Strata Property Act works, all in plain language. Among other things, the book covers strata fundamentals, strata operations, including meetings and voting, bylaws, including rental and age restrictions, and repairs. Since the first edition in 2002, the book has virtually become a standard reference tool among experienced strata property managers and realtors who focus on the strata market.

For example, strata property managers and owners regularly use The Condominium Manual to answer questions about bylaws, including rental restrictions, which are a ubiquitous source of disagreement.

Owners often ask, “If the strata corporation passes a bylaw prohibiting rentals, can I still rent my condo? There are several ways for an owner to avoid a new bylaw that restricts the owner’s ability to rent a condo.

For instance, The Condominium Manual explains how every owner automatically gets a grace period: ” … [t]he general rule is that a bylaw that prohibits or limits rentals does not apply:

* If there is a tenant occupying a strata lot at the time of the bylaw’s passage, until one year after the tenant ceases to occupy the unit, or

* One year after the bylaw is passed, whichever occurs last.

This means that in every case where a rental restriction bylaw is passed, its application must be delayed for at least one year. In cases where a rental restriction bylaw is passed while a tenant is occupying a strata lot, the bylaw will not apply until one year after that tenant has moved out.

Owners also continue to ask about the hardship exemption. They say: “If a bylaw prohibits me from renting my condo, can I still apply for permission to rent under a hardship exemption?

I prepared the newly released second edition of The Condominium Manual to keep readers up to date with many of the most important court decisions since the Strata Property Act came into force on July 1, 2000.

Als vs. The Owners, Strata Corporation NW 1067 is, perhaps, the most important new hardship case. First, although the Strata Property Act fails to define the term hardship, the Als case says the definition in the Shorter Oxford English Dictionary may serve as a guideline. That work defines hardship as, “hardness of fate or circumstance, severe toil or suffering, extreme privation.”

Second, an owner who applies for a hardship exemption must present sufficient evidence to show that the rental restriction causes hardship to that owner.

Although the court did not address the extent of proof required, it is likely that an owner must show hardship on a balance of probabilities. That is, the owner must show that it is more likely than not that the rental restriction in question creates hardship to that owner.

Third, although it is relevant to show that the strata unit has decreased in market value such that the owner will suffer a loss if forced to sell the unit, this factor alone is not sufficient to prove hardship without evidence of the effect of the loss on the particular owner’s financial position.

Owners often ask me about age bylaws, typically “when is an age restriction enforceable?” In our province, the B.C. Human Rights Code treats an owner differently from a tenant.

In a development with residential rentals, an age restriction is not enforceable against tenants if the restriction sets the minimum age at less than 55 years.

For example, a strata corporation’s age-restriction bylaw that restricts occupancy to persons who have reached 45 years of age cannot be enforced against tenants who are younger than 45 because that amounts to discrimination against tenants on account of age.

Similarly, even if the tenants are older than 45 but their children are not, the bylaw cannot be applied to the children. That would amount to discrimination against the tenants on the grounds of their family status. For readers who are especially interested in this subject, The Condominium Manual devotes a chapter to explaining how age restrictions work.

Mike Mangan practices law in Vancouver and teaches at the University of B.C.

The Condominium Manual: A Comprehensive Guide to the Strata Property Act ($39.95 plus GST) is currently available at Fireside Books (2652 Arbutus) and the publisher, the British Columbia Real Estate Association (600 – 2695 Granville). It can be ordered over the phone from the real estate association’s office (604-683-7702) or over the Internet at www.bcrea.bc.ca

Members of the Condominium Home Owners’ Association may also buy the book through their organization.

© The Vancouver Sun 2004