Part 22 published on 01/05/08
Court considers validity of By-law reducing assessment for unimproved strata lots
While the developer owned the bulk of the strata lots, the strata corporation passed a By-law which purported to grant a 50% reduction of the semi-annual assessment to any owner, including the developer, “that is the registered owner of three (3) or more strata lots that have unimproved private yard areas.” This By-law remained in effect for several years, resulting in estimated reductions of strata fees (for certain owners – including the developer) totaling approximately $60,000.
The petitioners, being the owners of some of the strata lots, sought an order that the By-law be declared invalid and that the strata council be directed to collect the “lost” fees.
About two weeks following the filing of the petition, at the corporation’s 8th Annual General Meeting, a motion rescinding the By-law was carried. But, at the same meeting, a motion “that council be directed to pursue the alleged issue of under-paid strata fees” was defeated.
The Court offered the non-binding opinion that the By-law was void because it contravened both the former Condominium Act and the Strata Property Act. The Court said, however, that the issue of the validity of the By-law should not be decided by the Court, because the issue is moot. The By-law had been rescinded. Furthermore, the owners in a general meeting had voted not to seek recovery of the lost strata fees, and “no evidence was presented to show that the attitude of the majority of the owners has changed since that meeting”. The Court accordingly held that “the decision of the Court will not have the effect of resolving some controversy which affects or may affect the rights of the parties”.