1. Bylaw Enforcement: How to build a better community
(coping with sounds, smells and schnauzers, oh my…)
Saturday, September 17, 2016
Presented by:
Stephanie Whyte | Associate, Condominium Law

2. CONDOMINIUM PROPERTY ACT
A Condominium Corporation is created upon registration of the Condominium Plan with the Land Titles Office. It operates pursuant to the provisions of the Condominium Property Act.
Condominium Property Act, RSA 2000 C-22
Section 28
The powers and duties of a corporation shall, subject to any restriction imposed or direction given in a resolution passed at a general meeting, be exercised and performed by the board of the corporation.
Section 37
A corporation is responsible for the enforcement of its bylaws and the control, management and administration of its real and personal property and the common property.

3. Bylaws Condominium Additional Sheet (CAD)
Look to the CAD to see what Bylaws are in force
Only Bylaws that are registered with Land Titles can legally be enforced

4. Condominium Additional Sheet (CAD)

5. Bylaws Appendix Bylaws
Attached as Appendix 1 to the Condominium Property Act
Section 33
On the registration of a condominium plan, the bylaws of the corporation are the bylaws set out in Appendix 1, and those bylaws remain in force in respect of that corporation until they are repealed or replaced.
Appendix Bylaws are only meant to be temporary

6. Bylaw Non-Compliance
Bylaws in force at time of infraction are the ones that apply
Grandfathering exception
Bylaws will place restrictions on use and occupancy, including prohibitions against:
Unreasonable interference with another occupant’s use and enjoyment of the Common Property  
Using your Unit in a manner that causes nuisance or hazard to another occupant
Making undue noise in or about your Unit or on the Common Property
Making structural, mechanical or electrical alterations to the Unit or Common Property without the prior written consent of the Board
Good Bylaws make for good neighbours
Bylaws provide structure and outline the nature of your project
i.e. Age restrictions, pet restrictions, commercial vs. residential

7. Addressing a Bylaw Infraction
Document the infraction
If the infraction is complaint related, request the complaint be made in writing or make a record of it
Investigate the infraction
Is this actually a Bylaw infraction? If so, what Bylaw has been violated?
If it is a complaint, does the complaint have merit?
Depending on the nature of the complaint, the Board Members or the Property Manager may be required to attend at the Units of the complainant and/or offending individual
Communicate with the Owner AND Tenant about the complaint
Take note of the requirements under your Bylaws
If appropriate allow the opportunity to rectify the behaviour
Clearly communicate what outcome you require and the deadline for compliance
*Keeping a record of the infraction(s) and any steps taken to address it is very important and will become vital if the Owner or Tenant refuses to rectify the behaviour

8. Available Remedies - Tenants
Section 54
The corporation may give a tenant renting a unit a notice to give up possession of that unit if any person in possession of the unit:
causes damage, other than normal wear and tear, to the real or personal property of the corporation or to the common property, or
contravenes a bylaw.
Section 55
If a tenant is given notice under section 54(1) and does not give up possession, the corporation or the landlord may apply to the Court for an order requiring the tenant to give up possession of the unit.

9. Available Remedies - Tenants
Section 56
If any person in possession of a unit that is being rented:
has caused or is causing excessive damage to the real or personal property of the corporation or to the common property, or
is a danger to or is intimidating the owners or any persons who are in possession of the other units located on the parcel,
the corporation may, notwithstanding that the tenant renting that unit has or has not been given a notice to give up possession of that unit under section 54 or by the landlord under the tenancy agreement, apply to the Court for an order requiring the tenant to give up immediate possession of that unit.

10. Available Remedies – Owners & Tenants
Section 67
Where on an application by an interested party the Court is satisfied that improper conduct has taken place, the Court may do one or more of the following:
direct that the person carrying on the improper conduct cease carrying on the improper conduct;
give directions as to how matters are to be carried out so that the improper conduct will not reoccur or continue;
if the applicant suffered loss due to the improper conduct, award compensation to the applicant in respect of that loss;
Can you evict an owner?

11. Court Applications
Applications under section 55, 56 and 67 of the Act are supported by Affidavit Evidence
An Affidavit will be sworn by the Board Member or the Community Manager
In some circumstances further Affidavit(s) will be required from the complainant as well
What you are entitled to in terms of relief is solely determined by your Bylaws
Can only seek a Court Order to address something that is found in your Bylaws
Entitlement to recover costs incurred in Bylaw Enforcement is determined by your Bylaws

12. Common Complaints Noise infractions Noxious odours Pet infractions
Damage or alterations made to Common Property
Hoarding

13. Commonly seen mistakes
Failing to allow an opportunity to rectify the behaviour
Only necessary if appropriate and circumstances allow
Failing to notify the Owner or the tenant of the offence
Delay in enforcement
Limitation Periods
Laches
Taking to heart Bylaw provisions that include,
‘in the sole determination of the Board’
‘which approval may be arbitrarily withheld’, ‘which approval may be withdrawn’
Not treating all Owners equally
Section 67(1)(a)(ii) or 67(1)(a)(iii)
Failure to keep documentation with respect to
Infractions
Steps taken to address the infractions/ notices sent/communication(s) with tenant and/or owner

14. Policies
The Board is often given the authority to “make such rules and regulations” as are necessary for the use and enjoyment of common property and enforcement of the Bylaws
Are set by the Board
MUST be based on an already existing Bylaw
“with approval of the Board”
“in accordance with regulations established by the Board”
Can provide certainty and guidance to the Owners for circumstances in which approval will be given
Structural changes or additions to a Unit – i.e. decks, awnings, satellite dishes
Pet approvals
As with Bylaws, must be enforced/applied uniformly
A new Board is not bound by the policies of an old Board

15. QUESTIONS? Stephanie D. Whyte Associate, Condominium Law
Direct:
@McLeodLawLLP