117 Forced Sale Of Owner’s Strata Lot To Collect Money Owing

CASE LAW

Three-Quarter Vote Not Required

The petitioner strata corporation filed a lien against the respondent’s strata lot and applied to court for an order under s. 117 of the Act to sell the lot and enforce the lien. In dealing with the respondent’s claim that a vote of three-quarters of the strata lot owners was required in order to bring the petition, the court found that s. 117 provides a summary process for the collection of strata fees, special levies, the cost of work, or an owner’s share of a judgment against the strata corporation. It is separate from s. 171 of the Act and, as such, a three-quarter vote is not required to file or enforce a lien under s. 117 (Strata Plan VR1008 v. Oldaker, 2004 BCSC 63).

Relief

Section 117 of the Strata Property Act and s. 37(4) and (5) of the Condominium Act authorize the court to make an order for the sale of a strata lot after a certificate of lien has been registered against the strata lot. The following cases, decided under s. 37 of the Condominium Act, address limitations on the court’s jurisdiction to grant relief against a statutory forfeiture of rights.

A court does not have a discretion to extend the time for tendering money found to be owing under s. 37. A court might, however, exercise its discretion to set aside an order made under that section if an applicant was able to meet the criteria for that purpose (Strata Plan VR 149 v. Grimwood, [1986] B.C.J. No. 1545 (QL) (S.C.)).

Section 37 does not contain any provision after judgment for relief on the basis of equities between the strata corporation and the owner of the strata unit. The section sets forth a procedure for statutory forfeiture of rights without express provision for relief, and a court cannot relieve against penalties or forfeitures that are statutory in origin, either under s. 24 of the Law and Equity Act or otherwise, except as might be allowed in the statute itself. However, the strata corporation is obliged to accept payment of the amount due by virtue of the judgment at any time before court approval for sale; s. 37(7), which requires the strata corporation to file an acknowledgment of payment upon receipt of the amount owing, is not limited by the 30-day redemption period in s. 37(5) (Strata Plan VR 1322 v. Fraser, 1996 CanLII 2007 (BC SC) (Master)).