Who’s responsible for clearing snow and ice?

DEAR TONY: Thank you for your column a few weeks ago regarding the obligation to maintain common property.

We spoke to our property manager regarding the walkways and driveways in our townhouse complex and he advised because the areas are not defined on the strata plan each owner was responsible for their own driveways. We are seniors in our 80s in failing health and we are not capable of clearing our own driveways.

Do strata corporations have an option to require owners to remove snow and apply salt or sand for driveways and sidewalks? If every owner contracted a different company to clear the snow it would be mass confusion in our complex.

Margaret F., Abbotsford DEAR MARGARET: Common property does not have to be specifically shown or defined on the registered strata plan. Under the definition of common property in the Strata Property Act, common property is that part of the land and buildings shown on a strata plan that is not part of a strata lot.

If any limited common property has been designated it must be shown on the strata plan filed in the Land Title Registry by the owner developer or filed as an amendment by the strata corporation by a three-quarter vote that complies with the conditions set out in the act.

The act does not permit a bylaw that makes owners responsible for common property unless the regulations of the act are adopted that would make such a bylaw possible. No such regulations have ever been adopted to date.

On your strata plan the driveways and sidewalks are common property and the snow removal and salting must be performed by the strata corporation.

A common problem for strata corporations such as townhouse developments with larger geographical areas to maintain is the expectation and practice that strata fees are lower. As a result, many townhouse complexes do not budget sufficient funds for snow removal, storm sewer maintenance, landscaping and tree maintenance and fencing.

Failing to budget for a maintenance item is no excuse to avoid the obligation. It is very common for townhouse complexes to ignore trees and fencing until the only option is replacement or removal, often resulting in damage to foundations and structures of the buildings.

I am frequently asked what the average strata fees should be for a townhouse complex. Every strata corporation is different and the needs of one community for exterior maintenance and services may be twice as much as a neighbouring property based solely on design, finishing and age.

To set an effective budget, start with an inventory of all common property and common assets that require maintenance, repair and inspection. Almost every exterior element requires attention on an annual basis.

The price of ignoring the obligation of snow and ice removal from sidewalks has been a costly mistake for many strata corporations across the province last winter.

Municipal bylaws require the adjacent property owner to remove snow and ice within a defined period of time.

Failing to do so could result in a fine or summons and many strata corporations received fines as a result that were as high as $600 per incident. Check your local bylaws before winter sets in.

DEAR TONY: Our strata council has decided to avoid holding a meeting to discuss a major change in the use of our property.

We are a gated community and the current council don’t want to pay for the gate maintenance any longer and want to remove the gate.

They have sent out a notice with a proxy form and mail-in ballot that requires each owner to vote yes or no, and they advise they will inform the owners of the decision by Nov. 15. Is this permitted?

Daria B. Vernon DEAR DARIA: The Strata Property Act does not permit mail-in balloted or proxyvote-only meetings. The intention of the legislation is to ensure eligible voters have the opportunity to discuss the proposed resolutions or at the very least require every eligible voter to consent to waiving notice of a meeting and any proposed resolutions.

Any significant change in the use or appearance of common property or a common asset requires a three-quarters vote at an annual or special general meeting. The exact wording of what is being approved or altered must be included in the wording of the resolution to confirm the strata council has the authority to proceed with the changes, if the resolution passes.

If a strata corporation is unable to hold a meeting due to time constraints or in the case of vacation properties where owners are only present in the summer, the strata corporation may issue a notice of waiver of meeting.

A notice of waiver works well for small strata corporations as it enables expedient decisions, but for large strata corporations such as yours over 100 units, it is difficult for the waiver to pass.

A notice of waiver requires every eligible voter to agree in writing that they are waiving notice of a meeting and that they agree to the resolution. In addition, if there is more than one person on title, all of them must consent to the waiver of meeting and the resolution.

If one strata lot does not agree or simply does not respond, the proposed resolution does not pass. I would advise anyone implementing a wavier of notice to confirm your ownership list is up to date or it may be necessary to conduct title searches to confirm the names of all owners on title.

When the strata corporation issues a form that indicates this is a waiver of notice of meeting it requires all eligible voters, including multiple owners to sign, consent and return the form. The strata corporation must retain copies of the waivers and consents. Any owner, tenant or person authorized in writing by the owner or tenant is entitled view or request a copy of the waivers and consents.

If a Form B Information Certificate is requested during this period, the strata corporation must disclose if a waiver of notice has been issued for a three-quarters vote, and any three-quarters resolution that has been passed but not yet filed in the Land Title Registry if required.

A wavier of notice proceeding is much more complicated than simply sending out a notice. Speak to a professional before you send out your waiver.

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.