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Condo Smarts: Denying voter rights could make bylaws unenforceable

Dear Tony: I was the developer on a recent project. I sold the 18 residential units and retained two commercial units as our head office.

Dear Tony: I was the developer on a recent project. I sold the 18 residential units and retained two commercial units as our head office. We gave notice of the first annual meeting as soon as 50 per cent of the units were sold and have fully complied with the act.

In addition to the approval of the annual budget, the owners requested that a number of bylaws be added to the first AGM to deal with parking, storage lockers and barbecues on balconies. As the developer, we agree to add the items to work co-operatively with the strata.

At the first AGM last week, an owner who has been bullying everyone refused to allow our representative to exercise the vote for our two commercial strata lots. She claimed that as the developer, we were in a conflict of interest because we still owned units in the strata. This has occurred before and we understand this is not valid, but would appreciate a column to address the issue of conflict of interest at an annual or special general meeting that may affect voting rights.

CWR

Denying someone a voting right as a proxy holder for any reason that is not permitted by the Strata Property Act is a serious matter for the strata corporation.

There is no such provision in the act about conflict of interest. The act deems that a person might be ineligible to vote on behalf of a strata lot for two reasons.

• If the strata has filed or started a court action against a strata lot, the owner can’t vote on anything pertaining to that lawsuit.

• If the strata has a bylaw establishing voting eligibility, it may stipulate that a strata owner can’t vote at an annual or special general meeting if the strata is entitled to file a lien against the lot.

These applications only apply to a majority vote or 75 per cent vote. Strata councils or managers often believe they have the authority to determine if a proxy is valid and whether a person is an eligible voter. They do not. The chairperson, whether the president or vice-president of council or elected by the eligible voters who are present, is the only person with the authority to deem whether a strata lot is an eligible voter and whether a proxy meets the requirements of the act.

Proxies must be in writing and signed by the owner appointing the proxy. The owner can impose other conditions or directions on the proxy, but the strata cannot. If the proxy or voter is valid because neither of the two earlier conditions apply, the proxy is exercised in the same manner as if the owner were standing there.

It may be helpful to know that the bylaws of your strata will not be enforceable, because both residential and non-residential strata lots must separately vote by 75 per cent in favour of approving new bylaws for a strata corporation. By denying your proxies and voting rights, not only were your property rights denied, but the strata disqualified its ability to adopt and register new bylaws.

Any owner may challenge the validity of proxy status or voting eligibility by applying to the Civil Resolution Tribunal. The Tribunal has the ability to order a strata corporation to do or stop doing something. That could include a requirement for the strata to call new meeting to address the agenda items and respect your voting rights.

 

Tony Gioventu is executive director of the Condominium Home Owners Association