In several earlier posts I discussed a B.C. Supreme Court decision involving problem strata owners who had, for years, defied efforts by the strata council to moderate their poor conduct. The court ordered the sale of the strata unit as the only practical means to bring an end to what was described as “outrageous conduct.” The Court of Appeal allowed the owner’s first appeal and set aside the order requiring the sale of the strata unit. The court left in place the injunction requiring the strata unit owners, the Jordisons, to abide by the bylaws and rules of the strata. Specifically, that the Jordisons were:
“. . . restrained from making loud noises, . . . making obscene gestures or uttering any abusive or obscene comments directed to any member of Strata Plan LMS 2768 or their families.”
As anticipated, the unruly owners did not change their behavior and ended up back in court. The Supreme Court found them in contempt of court because they had not abided by the injunction. The trial court described the conduct and its consequence as follows:
“. . their obscene language and gestures, their interference with the activities of others, their spitting at residents, the unacceptable loud and unnecessary noise they in their unit created have unreasonably interfered with the rights of others who are entitled to enjoy in peace common property, the common assets and their own strata units. . . . The Jordisons’ actions amount to an assault upon those residents of the Strata who have been for some years subjected to the Jordisons’ misbehaviour in all its varied forms.”
Based on this conclusion, the Supreme Court held that the only way to enforce the injunction against the Jordisons was to order that their strata unit be sold. The court relied on section 173 of the Strata Property Act (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 order compelling the sale was made under s.173(c) which, the court reasoned, gave authority to order a strata unit to be sold as a last resort in the face of incessant non-compliance of earlier orders granted under s.173(a) or (b).
The Jordisons appealed a second time seeking again to set aside the order of sale. This time, the Court of Appeal dismissed the appeal and upheld the order compelling the sale. This decision settles the question of whether or not the courts can force the sale of a strata unit as a remedy for a strata occupant’s failure to abide by strata rules and bylaws. The definitive answer is, given appropriate circumstances, the court can force such a sale.
For the Court of Appeal, the issue was the tension between two legal principles: the individual right of property (“a man’s home is his castle”) and the right of quiet enjoyment in collective living arrangements. The Jordisons argued that their rights as property owners could not be interfered with unless the SPA expressly said so. Section 173 does not specifically mention the power to order a sale and, therefore, the courts could not infer one.
The Court of Appeal disagreed. The court reasoned that the SPA must be given “a large and liberal interpretation” so that the objectives of the SPA can be achieved. Among other things, the SPA creates a framework for collective living arrangements. As the court noted:
“Participation in condominium projects necessarily involves a surrender of some degree of proprietary independence. An owner is at the mercy of the rules enacted through the internal decision-making process. That is only logical. … Likewise, uses that directly and adversely affect the physical enjoyment of neighbouring properties need to be regulated. These are problems that occur in all communities, and one of the attractions of the condominium lifestyle is that there can be a measure of control over the petty annoyances that often occur in urban habitats.”
This case sets a good precedent for strata councils seeking to moderate the behavior of recalcitrant owners or occupants. The strata can undertake efforts to persuade people to behave, knowing that if the impugned behavior continues, the strata can ultimately compel the sale of the problem strata unit.
Where a strata council suspects they will have difficulty with a strata owner or occupant, they should seek the assistance of the courts. Document well the impugned conduct and the strata’s efforts to address the problem. Where the bad behaviour continues, seek injunctive relief from the courts. If the conduct continues after that, in breach of the court order, it is possible to force the sale of the subject strata unit. The risk of that outcome may well moderate the offending conduct before such an application is necessary. On a cautionary note, the Court of Appeal held that the Jordisons’ case was “extreme”, meaning an order for sale will be the exception unless the circumstances warrant it.