Property Standards June 8, 2017, LIBOA ANNUAL CONFERENCE Surrey, BC Elizabeth Anderson and Michael Moll

Introduction This paper is an overview of key powers of the local government in regulating the condition of private property, with a focus on property visible to the passersby Local Government is often on the front lines of neighbourhood disputes over the upkeep of private property

Voluntary Maintenance Regulation only comes into play when people choose not to meet a certain standard that council or the regional board decides should be met. Bylaw officers become involved because the owner is neglectful or chooses not to match their neighbours’ standard of cleanliness

Community Standards Bylaws The most common local government property standards are imposed by a “Community Standards Bylaw” Typically a bylaw under Community Charter s. 8(3) NOT under parts 14 or 15 of the Local Government Act Community standards bylaws can impose standards of upkeep They should seek to impose reasonable restrictions and requirements to address nuisance, safety or other concerns

Nuisance and unsightly premises bylaws S. 64 of the Community Charter allows municipalities the power to regulate, prohibit, and impose requirements on a variety of bothersome situations Regional districts have narrow powers but can also target unsightly premises, rubbish, graffiti, noxious weeds, among other things

Building and fire safety bylaws Building and fire safety bylaws impose property standards to benefit the occupier S. 63(f) of the Community Charter grants municipalities the power, by bylaw, to regulate rental units and residential property that are subject to a tenancy agreement Municipalities can set standards for residential properties that would not apply if they were owner occupied Can also regulate trees, animals, businesses, and services

Other bylaws that might contain property standards Local government has the power to regulate many things, including: trees, animals, businesses, and local government services

Drafting Considerations Municipalities need to give consideration to enforceability of their community standards bylaws A lawyer may assist in advising: whether the municipality has been granted the power to regulate a matter whether the bylaw is drafted effectively whether the bylaw enables appropriate enforcement action

Drafting considerations (a) The underlying power Local government must ensure that the underlying power to regulate includes the ability to impose standards May require a consideration of the Canadian Charter of Rights and Freedoms

Drafting considerations (b) Definitions Caution: terms such as “unsightly” or “untidy” are subjective Definitions prescribing what is “unsightly” can assist in giving notice of obligations to owners Many local governments adopt a hybrid approach Prohibit “unsightly conditions” and accumulation of “waste” generally Also regulate outside storage of prescribed items that are deemed by bylaw to be unsightly

Drafting considerations (c) Regulate, prohibit, and impose requirements Prohibitions serve a key function, but local governments should remember that property standards are intended to impose a required level of upkeep These requirements help give clarity to the property standard Screening or enclosure requirements can assist in providing a compromise

Drafting Considerations (d) Compliance notice Community standards bylaws can authorize the delivery of notice ordering the property owner to comply with a requirement under the bylaw Notice should specify the action that must be taken to satisfy the bylaw The power to issue notices must be set out in the bylaw if action on default is a potential remedy

Drafting Considerations (e) Action in default Some bylaws allow local government staff to enter private property and remediate a problem if the owner disobeys notice to comply This always carries risks Advance notice of action must be provided When ‘self-help’ remedies are authorized by bylaw, an opportunity to make representations (“appeal”) should be provided to the affected person The level of procedural fairness may vary with the nature of the action, but is generally high

Drafting Considerations (f) Recovery of costs in default Ss. 17, 258, and 259 of the Community Charter allow Council to, by bylaw, provide that where a person fails to do something, the local government may fulfill the requirement at the person’s expense

Enforcement Options (a) Prosecution Can be done either by municipal ticket information or long-form MTIs are low-cost, convenient, provide a small fine, and may motivate an owner to deal with a problem New tickets can be issued each day for a continuing offence provision Long-form prosecutions can result in higher monetary penalties, but are costly and complicated S. 263.1 of the Community Charter: ancillary remedies

Enforcement Options (b) Bylaw Offence Notices Not every local government can issue BONs under the Local Government Bylaw Notice Enforcement Act Generally used similarly to MTIs Distinguishing feature: screening officers and compliance agreements limit the number of BONs that are actually adjudicated Financial penalties imposed by BONs can encourage a person to comply with a community standards bylaw, but do not actually compel them to do so

Enforcement Options (c) Civil Proceedings Local governments can also seek an injunction in the BC Supreme Court Injunctions require the property owner to comply Sworn evidence, affidavits, are used to set out facts for this process Much more time consuming than an MTI or BON, but often less complex than a long-form prosecution If person does not comply, local government can request a contempt order

Enforcement Options (d) Self-help Where a bylaw includes a provision under s. 17 of the Community Charter, local government may choose to enter onto private property itself to carry out the required work Self-help can be risky as, if the local government overstepped its bounds, a court might award the landowner damages for trespass or destruction or removal of valuable objects

Land Use Regulation Many complaints relate to how the property looks or where buildings are situated These regulations are properly pursued through bylaws under Part 14 of the Local Government Act In land use regulation, the issue is often whether the use or structure is permitted at all

Land Use Regulation Drafting Considerations Attention to scope and power to regulate land use Note: court will interpret community standards bylaws so that they still allow for the reasonable operation of permitted land use.

Land Use Regulation Enforcement Options Land use bylaws require the owner or occupier to cease the prohibited use or remove the unlawful structure Civil proceedings are generally preferred

Salvage yard in rural residential area

Heritage Conservation Not covered here even though property standards are a significant aspect of bylaws to regulate heritage conservation under part 15 of the Local Government Act These standards, arguably the highest level of property standards, are in place to ensure that property is maintained to a standard respective of a specific history or heritage.

Remedial Action Requirement Scope of Matters S. 72 of the Community Charter Hazardous conditions (s. 73) Nuisances (s. 74) Harm to drainage or dike (s. 75) Drafting Considerations Council or board must adopt a resolution Must specify precise work to be done Enforcement Act in default: rely on s. 17 of the Community Charter Court order: commence a civil proceeding

Conclusion Community standards bylaws and remedial action requirements are powerful regulatory tools can include self-help Can remedy unsightly premises, nuisances, and unsafe structures Land Use Bylaws may also be engaged in some cases Each situation should be carefully assessed to determine the proper enforcement tool