293 Transitional

CASE LAW

On a plain reading of s. 293(1), the legislature intended that the Act would apply to strata plans and strata corporations except as otherwise provided in the Act. Where, as in this case, the Act and the regulations contemplate expense allocations of the nature raised in the pleadings and also provide directions in the matters raised, the Act and the regulations govern the dispute, although events that took place before July 1, 2000, may be relevant in determining how an expense allocation for repairs should be treated (Strata Corp. LMS 509 v. Andresen, 2001 BCSC 201).

The respondent sought an order dismissing the plaintiff’s claim on the basis that the Strata Property Act applied to proceedings the plaintiff commenced under the Condominium Act. The court denied the respondent’s summary application to dismiss the proceedings under the rules of court in the absence of arguments on the retroactive or retrospective effect of the sections in question and the transitional provisions under s. 293 of the new Act (Strata Plan LMS 1468 v. Reunion Properties Inc., 2001 BCSC 788).

The strata development had a “leaky condo” problem. The development was created in three phases, the first and second consisting exclusively of townhouses, and the third consisting exclusively of apartments. All phases in the development were completed before the repeal of the Condominium Act. The apartment units suffered from serious water ingress and the need for at least some of the repairs was known before the Strata Property Act came into force. The petitioners applied to court for a declaration that the Strata Property Act applied and accordingly that all of the owners must contribute toward the cost of the repairs to the apartment building. Section 35 of the Interpretation Act states that, if an enactment is repealed, the repeal does not affect a right or obligation accruing under that enactment. Under s. 293 of the Strata Property Act, the Strata Property Act applies to strata developments completed under the Condominium Act unless the Strata Property Act provides otherwise. The court found that transitional provisions in s. 293 and the regulations represent “a contrary intention” within the meaning of s. 2 of the Interpretation Act, thereby muting the applicability of s. 35 of that Act. As the strata development in question was neither divided into separate sections nor comprised different types of strata lots under its bylaws, as permitted under the Strata Property Act, the common expense provisions under the Strata Property Act applied and any right or obligation that may have existed before the effective date of the Strata Property Act ceased to exist on that date. In dismissing the petition, the court held that the common expense provisions under the Strata Property Act applied to all of the strata lot owners and that they must contribute to the costs of the repairs (Wilfert v. Ward, 2004 BCSC 289).