Penticton Herald

Are conditiona­l bylaws enforceabl­e?

- TONY GIOVENTU

Dear Tony: We have a quirky bylaw that leaves the decision making on permitting pets up to the council. The bylaw says, “subject to the approval of the strata council, and owner is entitled to 1 cat, 1 dog or cage of birds.”

This has always seemed a bit strange to the owners because as councils have changed, the types of pets they have allowed have also changed.

This year we have a strata council who likes dogs and we have gone from 2 dogs to 8 dogs. There are no complaints, but several of us who have wanted dogs in the past were denied, and we are feeling a bit cheated by the unfairness.

Are these types of bylaws enforceabl­e? We have a harmonious community and no one is wanting to upset the balance, but there must be a way of making the bylaws fair. — William N. Kelowna

Dear William: Discretion­ary bylaws are problemati­c for strata councils because they don’t include any criteria on how the bylaw is enforced.

The essence of your letter directs us to the concept of fairness. Fairness is a condition that applies to everyone equally regardless of circumstan­ce. The difficulty the strata councils have to face is defending decisions where they decline one person’s request but permit another because the council either favours or dislikes one of the parties.

Enforcemen­t of bylaws is not random. It is procedural and methodical under the Strata Property Act. It is the sole responsibi­lity of a strata council to determine whether they believe a violation of a bylaw has been committed and whether there are any penalties which are published in the bylaws.

As strata corporatio­ns, we have a duty to comply with the Human Rights Code of BC, and that may compel us to accommodat­e occupants with special conditions. Even those types of accommodat­ions have some definition or interpreta­tion under the code.

A purely discretion­ary bylaw is extremely complicate­d for a strata council to apply. I often apply a series of questions to analyze a situation to determine if there is a weakness with a method.

An owner has requested permission to have a dog. What is the test that the strata council may apply? Will the council be required to disclose the test to the applicant to determine whether they qualify for a dog or not? Will that test be recorded in the minutes so other occupants are aware of the conditions? Will that test be applied to all other occupants in the same manner? Are there any conditions within the test that enable a strata council to deny the request of an owner? Does the discretion of the bylaw imply the council can determine the size, age or breed of the dog?

When challenged in the Civil Resolution Tribunal or the courts how will the council defend their actions if they cannot provide a reasonable test for the applicatio­n of the bylaw?

I recommend strata corporatio­ns try to avoid discretion­ary situations and establish clear, enforceabl­e bylaws and apply the same level of enforcemen­t to everyone owner, tenant and occupant.

Tony Gioventu is executive director of the Condominiu­m Home Owners Associatio­n To offer a question for considerat­ion write: CHOA, Suite 200-65 Richmond St., New Westminste­r, B.C., V3L 595 or email: tony@choa.bc.ca.

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