Strata Lot Entry Part II: The Strata Property Act

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Part I of this series, examined the laws against entry of a strata lot without consent.  That examination was performed ignoring the possibility that the Strata Property Act (SPA) might permit entry without consent.  That was a deliberate choice.  Without new law, there should persist a doubt that entering a strata lot without consent is lawful.  Accordingly, a representative of a strata corporation who enters a strata lot without consent should recognize that by doing so they may well be committing an unlawful act.

That said, this part of the series examines the possibility that the SPA permits entry of strata lots without consent in some circumstances.  I say “in some circumstances” because it seem quite clear that a representative of a strata corporation that enters a strata lot for a wrong reason is guilty of one of the offences examined previously including the crime of break and enter.  Accordingly, any strata corporation that enters strata lots at will without consent should cease that practice immediately.

It is possible, though, that a court or legislature will one day make entry of a strata lot without consent lawful in certain circumstances.  In the meantime, the best we can do is speculate what those circumstances might be.  So without further adieu, let’s examine the law that might maybe possibly permit entry.

The Strata Property Act

The only language in the Strata Property Act (SPA) that speaks directly to entering a strata lot appears in Section 7 of the standard bylaws2.  That section reads as follows:

7 (1) An owner, tenant, occupant or visitor must allow a person authorized by the strata corporation to enter the strata lot

(a) in an emergency, without notice, to ensure safety or prevent significant loss or damage, and

(b) at a reasonable time, on 48 hours’ written notice, to inspect, repair or maintain common property, common assets and any portions of a strata lot that are the responsibility of the strata corporation to repair and maintain under these bylaws or insure under section 149 of the Act.

(2) The notice referred to in subsection (1) (b) must include the date and approximate time of entry, and the reason for entry.

Let’s look at exactly what the wording in 7 (1) says.  “An owner…must allow a person…to enter the strata lot…” in an emergency or to perform maintenance.  So, what happens if no one “allows” entry to a strata lot?  Clearly, the owner is in contravention of the strata corporation’s bylaws.1  SPA Section 129(1) sets out the enforcement options available to the strata corporation:

129 (1) To enforce a bylaw or rule the strata corporation may do one or more of the following:

(a) impose a fine under section 130;

(b) remedy a contravention under section 133;

(c) deny access to a recreational facility under section 134.

(a) and (c) do not result in lawful entry without consent.  So, we are left only with “remedying a contravention under section 133”.  Section 133 reads as follows:

133 (1) The strata corporation may do what is reasonably necessary to remedy a contravention of its bylaws or rules, including

(a) doing work on or to a strata lot, the common property or common assets, and,

(b) removing objects from the common property or common assets.

(2) The strata corporation may require that the reasonable costs of remedying the contravention be paid by the person who may be fined for the contravention under section 130.

So, we see that the strata corporation is permitted to do “what is reasonably necessary to remedy a contravention of its bylaws”.  It seems that this is where the speculation about whether entry without consent is lawful begins in earnest.

1 Note that section 7 does not contemplate entry by the strata corporation in the case where consent is not obtained and therefore does not by itself permit the practice.  I have read and heard other people’s interpretations that conclude differently. For example, this “Condo Smarts” article concludes “Only in an emergency situation, to ensure safety or to protect significant loss or damage, may a person authorized by the strata corporation enter a strata lot.” Unfortunately, the writer does not cite any law to substantiate that conclusion. As far as I can tell there is no existing law on this point and the conclusion that entry is permitted without consent during an emergency constitutes a mere educated guess at what a court would consider lawful.
2 The origin of the bylaws of most BC strata corporations is the “Schedule of Standard Bylaws” which forms part of the provincial Strata Property Act.  As a result, it is common for section 7 of a strata corporation’s bylaws to read identically to the standard bylaws.

What, exactly, is the bylaw contravention?

When an occupant fails to “allow entry” of a strata lot as required by 7(1) of the standard bylaws, it is ambiguous what, exactly, the nature of the bylaw contravention is.  I see two interpretations of what the bylaw contravention is:

  1. not “allowing entry” required by 7(1)
  2. preventing the strata corporation from “ensuring safety or preventing significant loss or damage” and “inspecting, repairing or maintaining common property, common assets and any portions of a strata lot that are the responsibility of the strata corporation”

This may seem like hairsplitting, but by my estimation it dramatically affects what remedial action is permitted by section 133(1).  It seems that if the contravention is “not allowing entry” then the only remedial action available is to do whatever is “reasonably necessary” to be allowed entry by the “owner, tenant, occupant, or visitor” of the strata lot.

So, if the contravention is interpretation (1) a strata corporation cannot lawfully enter a strata lot without consent.  Full stop.  If, on the other hand, the bylaw contravention is interpretation (2), then the question becomes whether it is “reasonably necessary” to enter a strata lot without consent.  The answer to that question will surely depend to a large degree on the circumstances and is currently open to wild speculation even when the circumstances are known.