How to Read (and Write) Strata Bylaws
Every strata corporation must have bylaws and these bylaws may govern a range of matters including: the control, management, maintenance use and enjoyment of strata lots, common property and common assets of the strata corporation and the administration of the strata corporation. This article provides a brief overview of some key principles for reading, interpreting and drafting strata corporation bylaws.
What are bylaws?
Before considering how to read or draft bylaws, it is important to understand what a strata corporation bylaw is.
Every strata corporation must have bylaws. The bylaws may govern the control, management, maintenance use and enjoyment of strata lots, common property and common assets of the strata corporation and the administration of the strata corporation. A strata owner or tenant is always subject to the bylaws when on the strata property.
When a strata corporation is created by the deposit of a strata plan at the land title office, the strata corporation automatically gets the Standard Bylaws set out in Schedule A of the Strata Property Act. The developer of the strata property may then file bylaws at the land title office which amend, change, repeal, replace or add to the Standard Bylaws.
The strata corporation may subsequently amend, change, repeal, replace or add to their bylaws by following the amendment procedures laid out in the Strata Property Act.
A strata corporation can amend everything in its bylaws. However, a bylaw of the strata corporation is not enforceable to the extent that it contravenes the law, destroys or modifies an easement created under the Strata Property Act, or prohibits or restricts the right of an owner to freely, sell, lease, mortgage or dispose of their strata lot.
Core principles of reading and drafting bylaws
There are three 3 key principles which must always be remembered when reading, interpreting and drafting bylaws:
- Every word has meaning
- Different words mean different things, the same words mean the same thing
- The ‘Modern Principle’
Every word has meaning
Essentially, every word in a bylaw is important. There are no words that appear in a bylaw by accident. This means that every word must have a reason for being in the bylaw. At the same time, the converse is true: if a word does not appear in a bylaw, that is also intentional. Words are not left out of a bylaw by accident.
When reading or interpreting bylaws, words and phrases cannot be ignored to justify the interpretation you want. Every word is necessary to communicate the meaning of the bylaw and influences its interpretation.
When drafting bylaws, it is imperative that the language used is as clear and concise as possible. This means that when drafting you must consider what words are important and necessary.
Different words mean different things, the same words mean the same thing
Similar to the first principle, words have specific meanings. When different words are used in a bylaw it is because they have different meanings. Synonyms are not interchangeable.
When reading or interpreting bylaws, it is best to keep a careful eye out for the specific use of language in the bylaws. Note where different words are used in similar contexts and where the same words are used in different contexts.
When drafting bylaws, the words used, and their meaning, should be consistent throughout their entirety. When the same word is used to mean different things in different contexts, ambiguity is created. Ambiguity can lead to confusion about what a particular bylaw means, and this confusion can then lead to conflict.
The ‘Modern Principle’
The Modern Principle is an important legal principle of interpretation which states that words should be read and interpreted in their ordinary sense harmoniously within the context in which they appear. Essentially this means that where a word in a bylaw might be interpreted multiple ways, the preferred interpretation is the one that best aligns with the word’s ordinary meaning and is supported by the context of the sentence where the word is found, the specific bylaw where the word is found and the bylaws as a whole.
When reading and interpreting bylaws, it is best to begin from the position that the words are being used with their usual meaning, unless they are specifically defined in the bylaws. If a word could mean multiple things, first look to the sentence it appears in to try and clarify its meaning. If things are still uncertain, look to the bylaw provision in question and then to the bylaws as a whole to try and understand how the word should be interpreted. For example, if the word is used elsewhere in a different context, that context might shed some light on how the word should be interpreted (this technique also relies on the second principle discussed above: different words mean different things, the same words mean the same thing).
When drafting bylaws, assume that words will be understood in their ordinary meaning unless they are specifically defined in the bylaws. If you want a word to be interpreted in a specific way, it might be best to define the term so that a reader knows that the word is not necessarily being used in the ordinary sense. Alternatively, consider using a different word that ordinarily means what you are trying to communicate.
Reviewing the Basic Structure of a Bylaw
Generally, every well drafted bylaw should follow the same structure and have the same three elements: subject, verb and object. Luckily, the subject-verb-object structure is very common in the English language. Sentences which follow the subject-verb-object structure lend themselves to clarity and ease of reading. For example, “The mouse ate cheese” follows the subject-verb-object structure: ‘mouse’ is the subject, ‘ate’ is the verb and ‘cheese’ is the object.
Bylaws generally follow one of two fundamental patterns to either create permissions or prohibitions:
[who] may/shall [do what]
[who] may not/shall not [do what]
The subject-verb-object structure is followed in these two fundamental bylaw patterns. The [who] is the subject element of the bylaw. The ‘may/must’ or ‘may not/must not’ is the verb element of the bylaw. The [do what] is the object element of the bylaw. As will be discussed below, may and shall are important verbs.
An example of a bylaw that follows the subject-verb-object structure and creates a permission:
“The Strata Corporation may install and operate a closed-circuit television camera system, which may operate 24 hours a day 7 days a week, and/or record video only when triggered by motion sensor.”
An example of a bylaw that follows the subject-verb-object structure and creates a prohibition:
“An owner shall not permit the occupancy of a strata lot in exchange for monetary consideration or other value for a period of less than one year (twelve consecutive months).”
‘May’ and ‘Shall’ (or ‘Must’): Key Words to Look Out For
There are a few key words which appear frequently in bylaws that are particularly important: ‘may’ and ‘shall’ (or ‘must’).
May. The word ‘may’ is permissive and indicates that the action or obligation specified is subject to some discretion. Where ‘may’ is used in a bylaw, it generally means that a permission is being granted to the subject of the bylaw. In other words, ‘may’ allows an action to be taken, but does not require that the action be taken.
Shall or must. The word ‘shall’ or ‘must’ is imperative and indicates that the action or obligation specified is mandatory. Where ‘shall’ or ‘must’ is used in a bylaw, it generally means that a mandatory obligation is being imposed upon the subject of the bylaw. Similarly, ‘shall not’ or ‘must not’ create mandatory restrictions on the actions that the subject of the bylaw may take. Generally, ‘shall’ has been the traditional word to indicate a mandatory action or obligation. However, ‘must’ is now seen as a plain-language alternative which means the same thing. Depending on who drafted a particular set of bylaws and when they were drafted, either ‘shall’ or ‘must’ might appear. It is important to remember that both ‘shall’ and ‘must’ create mandatory actions or obligations.
Enforceability of Bylaws
Under the Strata Property Act, the strata council must enforce the Bylaws of the strata corporation. When drafting bylaws it must always be asked: if council gets a complaint about a bylaw contravention, how does council investigate and determine if there was a breach?
This is where clear drafting of the strata corporation’s bylaws is crucial. At minimum, for a bylaw to be enforceable, it must create either a clear prohibition against a specified activity or a clear obligation for someone to perform a specified action. In the interests of fairness, the best practice is to ensure that the enforcement of bylaws by the council is mandatory and not left up to the discretion of council.
Well drafted bylaws will provide clear boundaries for what is permitted and what is not permitted. Clearly identified thresholds for a breach of a bylaw will make it easiest for councils to determine if an owner has contravened a bylaw. Ambiguous thresholds or thresholds determined by council on a case-by-case basis make it difficult for bylaws to be enforced effectively, fairly, and consistently across the whole strata community.
An Example: Reading and Redrafting a Bylaw for Clarity and Fairness
Consider the following pet bylaw:
“Subject to the approval of the strata council, an owner is entitled to 1 cat or 1 medium-sized dog”
This bylaw is problematic for a number of reasons:
- The bylaw’s application is subject to the absolute discretion of the strata council. At any point the strata council could prohibit an owner from having a pet or allow an owner to have multiple pets. There is no guidance on how or when the strata council is supposed exercise the discretion under the bylaw. There is no guarantee that the bylaw will be enforced consistently from case-to-case or from council-to-council.
- The word ‘entitled’ is not the correct word to use when creating a bylaw that permits an owner to do something. ‘Entitled’ ordinarily means having a right to certain benefits or privileges. To convey that an owner may only have a more accurate phrase to use might be ‘may keep’ instead of ‘is entitled to.’ Although, even this suggested language may be problematic, as discussed in our third point below.
- The bylaw is characterized as a permission: i.e. granting the owner the right to have a cat or dog. Framing the bylaw this way, assumes that owners are not allowed to keep any animals whatsoever. Frankly, this assumption is wrong. Instead, it is assumed under the law that owners of private property, such as a strata lot owner, are allowed to do anything on or with their property, provided it conforms with all the applicable laws and bylaws. Therefore, the starting point for a bylaw which seeks to restrict what an owner can do on their strata lot should be framed as a prohibition using ‘must not’ or ‘shall not’ language.
- The content of the bylaw is ambiguous and no guidance on interpretation is provided. Specifically, the phrase ‘medium-sized’ dog is open to interpretation. How large is a medium-sized dog? How is it decided if a dog meets this ‘medium-sized’ criteria? Instead, a specific, objective threshold should be set if such a restriction is desired. For example, the size of the dog might be limited to a maximum of 60 pounds. This objective standard does not present the same issues of ambiguity or discretion and if ownership of a dog is challenged based on its size, the weight of the dog could be easily determined to see if it meets the criteria of the bylaw.
- The bylaw only applies to owners. Other people who might reside in a strata lot and own a pet, such as a tenant or occupant, are not caught by this bylaw. So, what might happen is owners would be restricted in what pets they can own, but a tenant who rents from a strata lot owner can keep any pets they want because the pet restriction bylaw does not apply to them.
Considering the points raised above, a better drafted of the bylaw might be:
“An owner, tenant or occupant must not keep any pets on a strata lot other than:
- One dog no larger than 60lbs, or
- One cat”
This version of the bylaw is framed as a prohibition against keeping any pet on a strata lot except for the specified types permitted as exceptions under the blanket ban. The bylaw also explicitly applies to owners, tenants and occupants meaning that anyone who resides in a strata lot is subject to the bylaw. Finally, there is no discretion in the bylaw’s interpretation or application. The strata council never has to decide that the bylaw or an exception under the bylaw applies to a specific owner. Instead, the strata council is simply bound by the Strata Property Act to enforce the bylaw as written against all owners in the strata. Removing the discretionary elements creates a much fairer and more predictable bylaw. In sum, the redrafted version of the bylaw is much clearer and fairer to everyone in the strata corporation.
A Final Reminder about the Practice of Law
Under the Legal Professions Act, the writing of bylaws or resolutions for a corporate body for a fee is the practice of law. This includes the writing of bylaws for strata corporations.
Now, a member of the strata corporation or the strata council can always sit down and draft or amend the bylaws of the strata corporation on a voluntary basis. However, if a strata corporation is going to pay someone to write or amend their bylaws, the person being paid must be someone entitled to practice law in BC. For example, a strata property manager cannot write the bylaws for a strata corporation unless they are also licensed in the practice of law.
Hopefully this brief overview of how bylaws should be read, interpreted or drafted has been helpful. Strata corporation bylaws are meant to be read and understood by the people who live in the strata community. They should be easily understood and predictable so that community members can live their lives with certainty and comfort knowing what is permitted and prohibited.
However, when it comes to drafting or amending bylaws, the principles discussed above are just a starting point. There are many other considerations that the writer must consider when drafting bylaws. As an example: consider the order in which the bylaws appear—since bylaws should be easy to navigate, bylaws concerned with similar topics should be grouped together.
If you are ever in any doubt, it might be best to reach out for professional help with drafting your strata corporation’s bylaws.