Canada: Strata Alert: There Is No Such Thing As "Free Parking"

Last Updated: October 23 2014
Article by Paul Mendes

Bea v. The Owners, Strata Plan LMS 2138, 2014 BCSC 826

In the classic board game of Monopoly TM there are the official rules, and there are the "house rules". House rules are for people who cannot follow the official game rules, or who believe the rules do not apply to them. The most widely known house rule is the one where all the fines amassed during the game are paid into a pot in the middle of the game board. Whoever lands on the " Free Parking" square during the game wins the pot. Not many people know that the Free Parking Rule is a "house rule" and not part of the official game rules.

The LMS 2138 case shows the risks of playing by your own rules when you live in a strata development. It all started in 2006, when the strata council at a strata complex in Port Coquitlam amended their bylaws to assign parking spaces to each strata lot rather than continue with unrestricted parking. Unhappy with the new assignment, the Bea's went to court.

The first of many, many trips to the courts was in 2008 when they asked the court to determine if the council had the right to make the amendment. The court found that the council did have the right and that it had, in fact, conducted itself in a manner designed to achieve the greatest good in the best interests of all the owners. 

While most people would have accepted the court's judgment and their new parking assignment, the Bea's would not. What followed was a barrage of legal proceedings that included five petitions, several interlocutory motions, reviews and the inevitable subsequent appeals, all of which were unsuccessful and resulted in costs against the Bea's – several attempts were even deemed vexatious by the courts.

Again, one might think that with such a strong sentiment by the courts and the associated cost could keep the Bea's at bay, but alas, several other proceedings were filed which finally lead to the council making an application seeking an order of contempt on the Bea's for their conduct in the courts. Ultimately, both Mr. and Mrs. Bea were found to be in contempt of court.

At this point the Bea's had amassed an excess of $53,000 of costs and the strata council had spent upwards of $173,000 in legal fees, disbursements and taxes, so the court had the difficult task of figuring out how to resolve this legal calamity fairly, once and for all. Counsel for the council suggested that Mrs. Bea be forced to sell her unit, giving the council conduct of the sale and requiring the Bea's to give up vacant possession.

While in normal circumstances that would have been an absurd suggestion, it is important to reiterate that this is not a normal case, and in very rare circumstances, where traditional punishments against those found in contempt of court such as fines and imprisonment offer no reasonable chance to end the abuse of the court's process, other penalties may be considered.  

Relying on The Owners Strata Plan LMS 2768 v Jordison, 2013 BCCA the fact that the Bea's had "intentionally, wilfully and in a blameworthy fashion disobeyed the order of [the] court", and the fact that the condo unit was what was fueling the Bea's contemptuous acts that give rise to the injustice that results, concluded that the forced sale of the unit was such an "other penalty" and in fact, the only appropriate and meaningful sanction for the Bea's contempt of court.

So in the end, after appearing before 28 different judges, in an endless onslaught of legal proceedings intended to refute the council's decision to reallocate parking spaces, the Bea find themselves being forced to sell their unit and to ask themselves, when to accept the realities of living in a strata complex and park their legal issues at the curb (or in the spot assigned to them).

WHAT WE DO: Lesperance Mendes assists stratas and owners in bylaw enforcement cases and the collection of unpaid strata fees, special levies and fines.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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