Strata and Condo Law

Owners’ Hot Tub Request Denied

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It can come as a shock to some owners that they don’t have a right to a hot tub in their strata lot. Hot tubs can be restricted or outright banned by a strata corporation’s bylaws. As a result, it is very important to review a strata’s bylaws when considering buying a strata lot.

In the case of Doig v The Owners, Strata Plan VR 1712, 2017 BCCRT 36, the owners had installed a hot tub and the strata demanded its removal. Continue reading “Owners’ Hot Tub Request Denied” »

Forced Interim Distribution

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There is not a wealth of case law on forcing interim distributions from an estate, that is paying out part of the inheritance before all of the estate administration is complete, or before litigation involving the estate has been concluded. In situations where there is ongoing litigation involving an estate, the estate cannot payout funds for any purpose other than estate debts. Therefore, some beneficiaries of estates cannot receive their inheritance for years as they wait for litigation to be concluded.

Kimberly Rule applied successfully to Court to have an interim payment made to her clients as the litigation tying up the estate for more than 2 years. Continue reading “Forced Interim Distribution” »

Creating Enforceable Rental Restrictions

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Enacting rental restriction bylaws can be trickier than originally contemplated for several reasons: the original state of the bylaws, the delaying provisions in the Strata Property Act, situations that prevent rental restriction bylaws from applying to some or all of the strata lots, and the requirements that must be met for rental restriction bylaws to be valid. Continue reading “Creating Enforceable Rental Restrictions” »

AirBnB’s in Stratas

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Like all rental topics on stratas, AirBnB’s have been a hot topic for all involved in stratas. The main issue noted with AirBnB’s in stratas, is the short term rentals of the strata lots and the concern regarding security, wear and tear of the common property, noise, etc.

For some living in stratas, the question is whether using their strata lot as an AirBnB is permitted. For most owners, they only look to their bylaws as to whether AirBnB’s are permitted. Continue reading “AirBnB’s in Stratas” »

B.C. Supreme Court Rules Committee Inviting Comments on Proposed Changes to Probate Rules

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The Attorney General’s B.C. Supreme Court Rules Committee is requesting comments on proposed changes to the probate rules. You can read the proposed changes here.

A couple of the proposed changes caught my eye. One proposed changes to broaden the class of persons who may file a notice of dispute to oppose an estate grant. As I previously wrote the current Rule 25-10 (1) is too restrictive. Continue reading “B.C. Supreme Court Rules Committee Inviting Comments on Proposed Changes to Probate Rules” »

Roommates and Rental Restrictions

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There has been confusion in the industry whether a strata’s rental restriction bylaw can also prevent an owner from having a roommate in their strata lot. In the industry one view has always been that the Strata Property Act only allows a strata to prevent the rental of an entire strata lot and has no effect on roommates. Continue reading “Roommates and Rental Restrictions” »

Strata Parking Disputes

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In an interesting dispute, an owner sued her strata in the CRT for changing which stall was the designated handicapped parking space: Ehrne v The Owners, Strata Plan VR 2601, 2017 CRTBC 2.

On the strata plan the strata originally had a common property stall designated as a handicapped stall, the other stalls were designated as limited common property by special resolution and had been that way since 1990. In 2014, the strata painted over the common property handicapped parking sign and it was assigned to a new owner. Continue reading “Strata Parking Disputes” »

Undue Influence by Inducing False Beliefs: Re: Patterson Estate

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Undue influence usually implies coercion. Someone may challenge a will or a benefit in a will on the basis that another procured the will or benefit by applying pressure to the will maker. The pressure may be overt threats of violence, or perhaps subtler forms of pressure such as an implied threat by the will maker’s caregiver to withdraw care.

A recent decision of the Nova Scotia Supreme Court, Re: Patterson Estate, 2017 NSSC 221, identifies as undue influence a child procuring a will by inducing her mother to believe that her other children did not care about her.

Joan Patterson had four children, Reed Patterson, Randall Patterson, Darlene Marriott, and Marlene Patterson. She died on June 13, 2016, the age of 70, and her husband had died four months before. Marlene Patterson had been estranged from both of her parents for about 20 years, but reconciled in 2012. On March 4, 2016, Joan Patterson moved from her home into Marlene Patterson’s home. On May 13, 2016, she made a new will, leaving her estate to Marlene Patterson, disinheriting her other three children.

Mr. Justice Wright found that Joan Patterson’s will was properly signed and witnessed in accordance with Nova Scotia law. She knew and approved of the contents of the will, and she had testamentary capacity.

The decision turned on whether Marlene Patterson procured the will by fraudulently inducing her to disinherit her other children. Mr. Justice Wright quoted from John Poyser’s book Capacity and Undue Influence (which I have reviewed here) in setting out the legal issue:

[17] In pressing their grounds of fraud as a subspecies of undue influence, the applicants rely on the following passage from the text book Capacity and Undue Influence (Carswell 2014) authored by John E.S. Poyser (at pg. 318):

Testamentary undue influence is typically thought of in terms of coercion. There is good reason for that. Dozens of cases have stated that conduct must amount to coercion if it is to amount to testamentary undue influence. Yet there are also abundant comments in the same cases and others that open the door to characterize testamentary fraud as a second type of conduct that can amount to undue influence. Coercion forces a person to do something against his or her will. Fraud operates differently. Testamentary fraud is an effort to fool a person into believing a false state of affairs that is then instrumental in causing that person to make a testamentary gift that otherwise would not have been made. As indicated earlier, persuasion is permitted, but persuasion is not permitted when it is mounted on a foundation of deliberate lies. Testamentary undue influence by coercion is difficult to establish. It is often pled but rarely proved as the facts rarely sustain it. Undue influence by fraud will be more easily sustained. Isolation, falsehood, and ingratiation are a common recipe employed by predatory family and peers in a bid to subvert a vulnerable person’s property at death.

[18] In the pages that follow, the author traces the development of fraud as a subspecies of undue influence in the case law. He refers to the decisions in Anderson v. Walkey, 1961 CarswellOnt 91 and in Timlick v. Crawford, 1965 CarswellBC 86 as instances where Canadian courts have invalidated a Will on the grounds of undue influence, not as the result of coercion, but as the result of manipulation and deceit.

[19] It is also noted (at pg. 324) that the party alleging undue influence has to prove not only the impugned conduct but that it in fact caused the Will-maker to sign the Will.

Marlene Patterson’s sister and brothers alleged that she had manipulated her mother into making the will isolating them from their mother and making false statements about them. Darlene Marriott testified that Marlene Patterson had asked her to assist her in persuading their mother’s disinherit their brothers. It was also evident that Marlene Patterson assisted her mother and making notes for her meeting with the lawyer who drew the will.

Mr. Justice Wright found that Marlene Patterson did in fact induce her mother into making the will she did by manipulation.

[87] It is not only from these suspicious circumstances but rather from the evidence as a whole, including Marlene’s lack of credibility, that the Court is prepared to draw the inference that Joan was induced to form the false beliefs she held about her other childrens’ lack of caring, through manipulation and deceit on the part of Marlene under whose control she remained after the move. Joan then acted on those false beliefs in changing her Will as she did. I therefore find that the actions of Marlene, on a balance of probabilities, crossed the line into the sphere of undue influence. As noted earlier, while persuasion is permitted without legal consequence, persuasion of a testator is not permitted when it is mounted on a foundation of untruths induced by the proponent of a Will.

In the result, the May 13, 2016 will is invalid.

CRT Jurisdiction doesn’t Extend to Previous Owners

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The Civil Resolution Tribunal is an online dispute resolution tribunal that handles many strata disputes as well as small claims matters under $5,000. Recently, the CRT was asked to resolve a dispute between a former owner of a strata lot and the strata corporation. Before the CRT could make a decision, it had to consider whether it had jurisdiction to resolve the claim. Continue reading “CRT Jurisdiction doesn’t Extend to Previous Owners” »

What is a Residential Strata Lot?

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The issue of whether a strata lot is residential can have significant impact on how the strata corporation operates. Of significant concern (in many cases) is whether there are both residential and non-residential strata lots which means that any bylaw change requires 3/4 vote approval from the residential units and 3/4 vote approval from the non-residential units. But how does a strata corporation know whether some of the units are residential or not? Continue reading “What is a Residential Strata Lot?” »