Western Canada Business Litigation Blog

How should a Strata Deal with the Owner from Hell? – Part 3

Posted in Real Estate
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In my January 2012 and July 2012 blog posts, I discussed the ongoing saga of the Jordisons, arguably the epitome of strata owners from hell.  For a period of years, the Jordisons continually behaved in an obnoxious and outlandish manner towards their neighbors.  To try to stop them, the strata council levied fines totaling over $20,000 for their ongoing and flagrant breaches of the strata bylaws and rules.  This did not work. 

The strata council then sought the assistance of the court.  The case was significant because, for the first time in B.C., the court ordered the Jordisons’ strata unit sold.  In doing so, the court relied on s.173 the Strata Property Act, R.S.B.C 1998, c. 43 (the “SPA”) which provides:

On application by the strata corporation, the Supreme Court may do one or more of the following:

(a) order an owner, tenant or other person to perform a duty he or she is required to perform under this Act, the bylaws or the rules;

(b) order an owner, tenant or other person to stop contravening this Act, the regulations, the bylaws or the rules;

(c) make any other orders it considers necessary to give effect to an order under paragraph (a) or (b).

The court held that the authority to order a sale was implicit in s.173(c) as the only reasonable means of solving the problems created by the Jordisons.  The court also imposed an injunction prohibiting the Jordisons from violating the strata bylaws and rules and from “making loud noises . . ., making obscene gestures or uttering any abusive or obscene comments directed at any member” of the strata. 

The Jordisons appealed.  The Court of Appeal set aside the order requiring the sale of the strata unit though left in place the mandatory injunction prohibiting the Jordisons from behaving badly.  The Court of Appeal held that s.173(c) is intended only to enhance the efficacy of the two preceding subsections and is not, on its own, a source of authority to order a sale.  Subsections 173(a) and (b) allow the court to order mandatory or prohibitory orders against someone regarding their obligations under the SPA, the strata bylaws or rules.  Those types of orders do not include an order for sale, at least not at first instance.

While there motive was unlikely the elucidation of neat legal issues such as this, the Jordisons ended up back in court to provide an answer to that question.  Undeterred by the fines and court orders intended to moderate their behavior, the Jordisons continued to behave badly.  The strata council applied to have them found in contempt of court and for an order that their strata unit be sold.  After reciting a litany of ongoing, obnoxious behavior, the court found that the Jordisons were in contempt for “intentionally, willfully, and in a blameworthy fashion disobey[ing] the order of this court.” 

Ordinarily, a finding of contempt leads to fines and/or jail.  In this case, however, the court reasoned that past fines had gone unpaid and a stint in jail would only temporarily solve the problem while the Jordisons were actually incarcerated.  The difficulties would continue once they returned.  In addition, incarceration is generally warranted for “only the most egregious contempt.”  The only solution, therefore, was to invoke the auxiliary authority of s.173(c) and order the sale of the Jordisons’ strata unit.  This was justified as a means of “giving effect” to the earlier injunction granted under s.173(a) of the SPA.  The Jordisons were ordered to vacate their strata unit and given 30 days to sell it.  If they did not sell it in that time period, the strata council would be given conduct of the sale.  The RCMP were ordered to arrest the Jordisons if they did not comply.  Lastly, the strata council was granted its “special costs” of the application against the Jordisons.

For reasons mentioned below, the Jordisons saga is not quite over.  However, the lesson for strata councils is to seek the assistance of the courts sooner when faced with objectionable behavior by tenants or owners.  Document well the impugned conduct and the strata’s efforts to address the problem.  In the face of this type of evidence, the court will grant a mandatory injunction requiring the bad strata occupant to behave.  This is effectively a warning by the court to act civilly or else.  If the poor conduct continues, the court will order the strata unit sold as the only practical method of remedying the situation where earlier orders have been ignored. 

The caveat is that, yet again, the Jordisons appealed.  That appeal has yet to be heard but, in the meantime, the Jordisons asked the Court of Appeal to suspend the order that they vacate their strata unit and that it be sold.  The Court of Appeal ordered only a stay of the sale pending the appeal.  It did not set aside the order that the Jordisons vacate their unit because “the Court can have no confidence that the appellants will restrain themselves from further harassment of other occupants of the condominium building pending the appeal.” 

My view is that the Jordisons’ appeal will ultimately be dismissed and their unit sold.  From the sale proceeds, the strata council will finally recover all the fines and its special costs.  The Jordison saga will be over (for this strata) and will leave in its wake strong appellate authority that, in the right circumstances, persistently anti-social and intransigent owners can be kicked out of a condominium complex and their unit sold.