Content by the Real Estate Council of British Columbia. To view the original post, click here.
Although the Real Estate Council does not enforce the Strata Property Act (the “SPA”), to appreciate how the requirements of RESA and the Council Rules apply to strata corporations with sections, it is helpful to understand the provisions of the SPA that govern the creation of sections.
Creation of Sections
The SPA permits the creation of sections in order that the different interests of owners of residential and non-residential strata lots, owners of non-residential strata lots used for different purposes, and owners of apartment style, townhouse style or detached strata lots may be represented. Sections are created by bylaws established by the developer at the time the strata plan is filed, or subsequently by an amendment to the bylaws approved by a 3/4 vote of each of the groups of strata lots intending to form a section and a 3/4 vote of the strata corporation.
Notwithstanding the creation of sections, the strata corporation retains its powers and duties in matters of common interest to all owners. Thus, even if sections are created, the strata corporation continues to exist and is required to function in the same manner as any other strata corporation by holding general meetings, electing a strata council, approving a budget, and collecting strata fees for those expenses that are common to all strata lots. The items for which a strata corporation will be responsible and for which it must collect strata fees will vary depending on the structure of the development, however, at a minimum, the strata corporation will be responsible for obtaining insurance as required by SPA and collecting strata fees to pay the insurance premium.
Powers and Duties of a Section
The SPA provides that once created, a section is a corporation and has the same powers and duties as the strata corporation in respect of matters that relate solely to the section. As a result of this provision, once the bylaws creating sections are filed in the land title office, each section identified in the bylaws is a separate corporation. Thus, each section is a separate legal entity. The fact that each section is a corporation and thus a legal entity, is extremely significant. Because each section is a separate legal entity, the section is equivalent to a strata corporation in respect of matters that relate solely to the section as set out in section 194 of SPA. Sections are often referred to as “mini” strata corporations. The SPA sets out that a section has the power and duty to:
- Establish its own operating fund and contingency reserve fund for common expenses of the section
- Budget and require section owners to pay strata fees and special levies for expenditures the section authorizes
- Sue or arbitrate in the name of the section
- Enter into contracts in the name of the section
- Acquire and dispose of land in the name of the section
- Enforce bylaws and rules
Once a section is created, the SPA contemplates that the section will operate independently of the strata corporation. The section must establish a budget for expenses the section authorizes and must establish its own operating and contingency reserve fund.
Administration of a Section
The SPA provides that the eligible voters of a section may call and hold meetings and pass resolutions in the same manner as the eligible voters of the strata corporation. This provision is further evidence that a section is to operate as a “mini” strata corporation.
The SPA also provides that each section must elect an executive for the section. The executive has the same powers and duties with respect to the section as the strata council has with respect to the strata corporation.
Practical Effect on Governance
Once bylaws have been filed creating sections, each section is a legal entity. Each section must hold (or waive) an annual general meeting to elect an executive and to approve a budget for the common expenses of the section that are authorized by the section.
Although it is often common practice for strata corporations with sections to have one AGM for the strata corporation, and for the budget approved by the strata corporation to contain expenses for the sections, such a practice does not conform to the SPA. To comply with the SPA each of the strata corporation and sections must hold (or waive) the AGM at which time the budget for the legal entity that called the meeting must be approved and a strata council or executive, as appropriate, must be elected.
The Real Estate Council of British Columbia (Council) is a regulatory agency established by the provincial government in 1958. Its mandate is to protect the public interest by enforcing the licensing and licensee conduct requirements of the Real Estate Services Act. The Council is responsible for licensing individuals and brokerages engaged in real estate sales, rental and strata property management. The Council also enforces entry qualifications, investigates complaints against licensees and imposes disciplinary sanctions under the Act. Visit www.recbc.ca for more information.
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