Evict Thy Neighbour: B.C. Court Of Appeal Upholds Forced Sale Order Under the Strata Property Act 

publication 

November 2013

Litigation Bulletin

The British Columbia Court of Appeal recently upheld an unprecedented order for the immediate sale of a condominium unit following the "outrageous behaviour" of the unit's owner and her son towards their neighbours. The decision in The Owners Strata Plan LMS 2768 v Jordison1 gives strata councils an enhanced enforcement mechanism by permitting them to apply to the court for a forced sale order, but only in extreme cases where the owner has failed to comply with previous court orders requiring them to adhere to the Strata Property Act and strata bylaws.

Facts

Rose Jordison and her 20 year old son, Jordy Jordison, moved into their unit in a Surrey condominium complex seven years ago. From the moment they arrived, neighbours were subjected to harassment and intimidation. The primary culprit was Mr. Jordison, whose abuse targeted female residents and included obscene language and gestures, spitting at other residents, unacceptably loud and unnecessary noise and interference with the activities of others. Examples of Mr. Joridson's intimidation and abuse involved him throwing water at female residents and loudly banging on the front door of his mother's unit whenever someone walked past. The strata council alleged that rather than curbing her son's behaviour, Ms. Jordison actively encouraged her son's harassment of other residents.

Strata Council's Attempts to Enforce Compliance

When contacting the police and fining the Jordisons over $20,000 did not alter the Jordisons' behaviour, the strata council petitioned the B.C. Supreme Court for an order compelling Ms. Jordison to sell her unit pursuant to section 173(c) of the Strata Property Act.2 Section 173 of the Act states:

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).

In a 2012 decision,3 Mr. Justice Blair ordered Ms. Jordison to sell her unit within 90 days, at which time the strata council would be permitted to apply for conduct of sale, and ordered her and her son to comply with the Act and the strata bylaws. However, the Jordisons successfully appealed the forced sale order, but not the order to comply with the Act and strata bylaws. In its 2012 decision,4 the Court of Appeal held that section 173(c) is not a "stand alone" provision capable of independent relief; rather it is intended to enhance the efficacy of the subsections (a) and (b). Nonetheless, the Court of Appeal left open the question of whether an order for sale could be granted under section 173(c) where an individual had failed to abide by an order under subsections (a) or (b).

Jailed for Contempt or Forced to Sell?

In 2013 the strata council returned to the Supreme Court seeking an order forcing Ms. Jordison to sell her property within 30 days.5 Mr. Justice Blair granted the forced sale order on the basis that the Jordisons had failed to comply with his 2012 order requiring them to comply with the Act and strata bylaws. He also found that the usual penalties for contempt of court – fines or imprisonment – would be inappropriate.

The Court of Appeal upheld the forced sale order on appeal from the Jordisons finding that a forced sale order would be appropriate where it was the only way to enforce compliance with the Act and strata bylaws. The old adage "a man's home is his castle" was held to be subordinate to the exigencies of modern condominium living, where an individual necessarily surrenders some degree of proprietary independence. The Court of Appeal agreed with the lower court decision that alternative penalties would not ensure compliance with the Act and strata bylaws.

Takeaways

The Court of Appeal's ruling in Jordison permits strata councils to apply to the court for an order forcing an owner to sell their unit where the owner has failed to comply with previous orders requiring them to adhere to the Act and strata bylaws. However, the forced sale remedy must be exercised reasonably and is only available in extreme cases. 

by Daniell Shouldice 

1 2013 BCCA 484 ("Jordison").

2 SBC 1998, c 43 (the "Act").

3 2012 BCSC 31.

4 2012 BCCA 303.

5 2013 BCSC 487.

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2013