The Law of Forced Sale in BCThe Owners, Strata Plan NW 1245 v Linden, 2017 BCSC 852 (CanLII)
In 2012, the Supreme Court of British Columbia (“BCSC”) ruled that s. 173 of the Strata Property Act(the “Act”) permits the court to order for eviction and forced sale a private strata lot if it is the only practical method to force an owner to comply with strata corporation’s bylaws and the Act.S. 173(1) sets out the powers of the BCSC:
On application by the strata corporation, the Supreme Court may do one or more of the following:
(a) order an owner, tenant or other person to perform a duty he or she is required to perform under this Act, the bylaws or the rules;
(b) order an owner, tenant or other person to stop contravening this Act, the regulations, the bylaws or the rules;
(c) make any other orders it considers necessary to give effect to an order under paragraph (a) or (b).
Under this provision, the BCSC can make an order that an owner perform a duty under the Act or bylaws, or stop contravening the Act or bylaws. It does not explicitly provide that the court can order a strata property owner to sell her property, but the BCSC found this power in s. 173(1)(c). Nevertheless, this last-ditch remedial power has only been used when an owner has failed to comply with a prior order under s. 173(1)(a) or (b). The Owners Strata Plan LMS 2768 v. Jordison, 2013 BCCA 484 [Jordison BCCA] made this clear at para 27:
It is apparent from the language of s. 173 that the Legislature intended by subsection (c) to empower the Supreme Court to make such orders as will be effective in accomplishing the objects mentioned in subsections (a) and (b). According to Jordison, this includes injunctive orders.
Ultimately, the court’s recent interpretation of s. 173(1)(c) is a drastic change to how academics once viewed condominium law in British Columbia. As Douglas Harris indicates, past academic thought on condominium ownership believed that “an owner could ‘never be evicted’ for problematic behaviour,” but this is no longer the case.
The Owners Strata Plan LMS 2768 v. Jordison, 2012 BCSC 31 [Jordison (2012), BCSC,was the first case in British Columbia where this “enhanced enforcement mechanism” was used to force compliance with the strata corporation’s bylaws and the Act.The BCCA overturned the decision in Jordison(2012), BCSC.The Jordisons were evicted when their continued misconduct brought them back into court in 2013; the BCCA upheld this decision.The Owners, Strata Plan NW 1245 v. Linden, 2017 BCSC 852 [Linden] provides additional guidance on when the courts will order this drastic remedy. Referencing Jordison BCCA, the court in Linden emphasizes that an application for forced sale under s. 173(1)(c) is “essentially a motion for contempt.”
Forced sale is a drastic remedy and the court has only ordered a forced sale under s. 173(1)(c) when the respondents have acted in an ongoing abusive manner towards members of the strata that makes living in the strata inhospitable for other owners and tenants.This is evident in Linden. Members of the strata reported the respondents 26 times for excessive noise between May 16, 2016, and January 30, 2017.In addition, the respondents were accused of numerous incidents of harassment. Pertinent examples include spraying other residents with water, eavesdropping outside of residents’ doors and by their fences, and physically assaulting two residents.The court suggested that forced sale was appropriate and necessary to ensure the safety of the other strata owners and tenants.
The BCSC will only make a sale and eviction order under s. 173(1)(c) if the respondent has: (i) breached a prior order under s 173(1)(a) or (b), and; (ii) that an order for sale is the only way to guarantee the respondent’s (and now contemnor) compliance with the order. Further, it appears that the court will only impose this remedy if the respondent’s actions involve ongoing abusive behaviour such that a sale and order is the only appropriate remedy.
In these circumstances, the court must balance the rights of all of the strata owners, including the respondents, because of the seriousness of the remedy. If the court does not order an injunction, how else can the court punish both the contemnor’s failure to adhere to the bylaws and the contempt itself? Unless the behaviour rises to a level of criminality, there would be essentially no method to remove the contemnor from the strata. The remedy permitted under s 173(1)(c) seems to balance this consideration – as the courts have held, it is essentially a motion for contempt.The contemnor is given multiple chances to comply with the order and the drastic remedy of forced sale is only ordered when it is clear that the contemnor will not comply. Further, since Linden set the burden of proof at beyond a reasonable doubt, one must recognize that this is not a capricious order.Given these considerations, it seems necessary that the court be given the discretionary power to infringe on property owners’ rights.
However, the courts fail to give sufficient consideration to the effect of mental illness on the behaviour of the respondents, and the interplay between mental health and forced evictions. As Douglas Harris argues, the courts have only briefly acknowledged the effect of mental disorders on respondents’ behaviour.In Linden,Mr. Linden’s mental health is only mentioned in an email the respondents sent to the appellant’s counsel in which the respondents asked for an adjournment due to “constraints of financial burden and Mr. Linden’s mental health issues.”Douglas Harris does acknowledge that the respondents often do not raise their mental health issues themselves;nevertheless, he also argues that the court is “inclined to accept, but not probe, the evidence of illness or disability, and to grant the order anyway. In fact, the evidence of mental disorder may almost explain, if not warrant, the order.”Balancing the rights of the appellants and the respondents is more challenging in the context of the mental health problems and seems to be ignored altogether, perhaps for this very reason. The effect of this is that private communities are now able to reconstruct ownership in a manner that can potentially discriminate against people with mental health issues.
Finally, the short timeframe that the courts provide respective respondents to vacate and list their strata property lots for sale is problematic. In Jordison (2013), BCSC, the court ordered the “immediate sale of the condominium unit registered in the name of Ms. Jordison.” The court ordered the respondents to vacate the unit within 30 days and if the respondents did not sell the unit in 30 days the Strata was to be given conduct of sale. In Linden, the court gave the respondent seven days to list his strata lot for sale and required vacant possession of the unit with 30 days. This places an unfair burden on the contemnor. In Linden, while it is understandable that the unit be listed for sale within 7 days of the order, it is less fair to permit the strata corporation to conduct the sale if the unit is not sold within 30 days. The objective of protecting the other members of the strata unit is fulfilled by forcing the owners to vacate within 30 days and forcing the conduct of sale within that period as well does not enhance this public safety objective. Further, the ability of the respondent to adequately supervise conduct the sale should be considered because many respondents suffer from mental health issues. By forcing the conduct of sale within such a short time-frame the court may even exacerbate respondents’ mental health issues.
Ultimately, as Linden demonstrates, the law on forced sale in BC attempts to consider the respondent’s volition and ability to comply with the Act and bylaws before resorting to this discretionary remedy of the court. However, despite its attempt to balance certain considerations, the court in Linden failed to give sufficient weight to the respondents’ mental health issues. Accordingly, the respondents’ mental health should be taken into consideration when an order under s. 173(1)(c) is being pursued because many forced sale cases involve individuals who acknowledge suffering from mental health issues. Finally, the execution of the orders outlined in Jordisonand Linden, respectively, are problematic and the courts should consider listing and vacate order extensions. This is particularly relevant in the context of mental health disorders whereby the respondents may have trouble executing the conduct of sale.
Strata Property Act, SBC 1998, c 43 [SPA]
The Owners Strata Plan LMS 2768 v. Jordison, 2012 BCSC 31.
SPA, supra note 1.
The Owners Strata Plan LMS 2768 v. Jordison, 2013 BCCA 484 at para 27.
Douglas C. Harris, "Anti-Social Behaviour, Expulsion from Condominium, and the Reconstruction of Ownership" (2016) 54:1 Osgoode Hall Law Journal 53 at 55.
JordisonBCSC2012, supra note 2.
McMillan, “Evict Thy Neighbour: B.C. Court Of Appeal Upholds Forced Sale Order Under the Strata Property Act” (November 2013), online: McMillan<https://mcmillan.ca/Evict-Thy-Neighbour-BC-Court-Of-Appeal-Upholds-Forced-Sale-Order-Under-the-Strata-Property-Act>.
The Owners Strata Plan LMS 2768 v. Jordison, 2013 BCSC 487 [Jordison(2013), BCSC].
The Owners Strata Plan LMS 2768 v. Jordison, 2013 BCCA 484.
Jordison(2013) BCCA, supra note 5.
The Owners, Strata Plan NW 1245 v. Linden, 2017 BCSC 852 at para 37.
Ibid, at para 41.
Ibid, at para 27.
Ibid, at paras 24, 26, and 33.
Ibid, at para 41.
Ibid, at para 37.
Harris, supra note 6 at 83.
Linden, supra note 12 at para 4.
Harris, supra note 6 at 84.
Harris, supra note 6 at 83-85.
Jordison (2013), BCSC, supra note 9 at para 42.
Jordison (2013), BCSC, supra note 9 at paras 43 and 44.
Linden, supra note 12 at para 42.