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

2. 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

3. 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

4. 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

5. 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

6. 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

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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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 of the Community Charter: ancillary remedies

16. 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

17. 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

18. 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

19. 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

20. 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.

21. 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

22. Salvage yard in rural residential area

25. 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.

26. 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

27. 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