Assumption of Liability agreement ("AOL") for alterations

Here are some of my comments and responses to the question posted in another forum asking whether an owner is required to agree to an assumption of liability (AOL) for alterations to common property. 

NAME. Owners of strata property can agree to whatever they want, but the answer to your question is no, an owner is not required to sign an AOL. 

An agreement must be voluntary, not forced, or coerced by chicanery. Also,  pursuant to s.121 of BC's Strata Property Act ("SPA"), most AOLs are unenforceable to the extent that they contravene the SPA, standard bylaws, or privity of contract. 

Unfortunately, there are no penalties for strata councils contravening the SPA, so many strata bylaws are bogus and unenforceable. Any many AOLs prove to be not worth the paper they're written on.

I am in total support of making the best use of property, but only in a lawful manner. I think most AOL agreements in strata corporations are intended as a waiver of the owner's statutory rights and protections and interference with future sales to deter requests for alterations of any kind.  Owners are tricked or bullied into signing contracts that no reasonable person would voluntarily agree to. 

When it comes to future sales, prudent purchasers walk away from such nonsense. I think the resultant diminution in property value, legal integrity, and good reputation is contrary to the best interests of strata corporations, or good neighbour relations. 

NAME. I agree that it's reasonable to require an Indemnification Agreement to the extent of covering the expense of the installation/alteration and paying reasonable user fees pursuant to s.6.9 of the SPR in an amount that provides for land value, common expenses, and reinstatement of the common property as shown on the strata plan as a condition of approval. 

However I disagree with Assumption of Liability (“AOL”) agreements that attempt to transfer the strata’s responsibilities onto individual owners who are foolish enough to waive their statutory rights and protections and ignore their neighbours' fractional interests in common property.

NAME Bylaws or AOLs that threaten to dispose of alterations to common property as defined in s.1 of the SPA are unenforceable to the extent that s.80 of the SPA requires a 3/4 vote to give effect to such a threat, or to the extent that threats to damage common property alterations that the strata has a statutory s.72 obligation to repair and maintain contravene Use of Property bylaws. 

Pursuant to s.26 of the SPA the strata council is required to enforce the bylaws or remedy contraventions pursuant to s.133. More particularly, standard Use of Property bylaws prohibit owners, including council members, from using a strata lot or common property in a way that causes damage or nuisance or unreasonable interference with another owner's use or enjoyment.

AOLs are great for lawyers who profit from churning up confusion and litigation at the expense of others, but the User Fees provisions in s.6.9 of the Strata Property Regulation are more legally sound. I think reasonable user fees are far more beneficial to strata corporations and the members who pay the property taxes and common expenses.

NAME. In regard to s.71 of the SPA, I would argue that a significant change to the USE of common property is any change from shared use and enjoyment as shown on the Strata Plan and Schedule of Unit Entitlement to exclusive use of any kind, or anything hazardous, such as added gas lines.

I think a significant change in the APPEARANCE of the common property is any added building not shown on the strata plan, and anything obvious such as adding skylights or decks, or removing trees or grass, or altering any of the work of the developer's landscape architect.

NAME Subject to s.71, I think permission for short term exclusive use of common property pursuant to s.76 of the SPA is best tied to a ratified User Fee rule or bylaw pursuant to s.6.9 of the SPR. AOLs cannot be relied on, threaten damage in contravention of Use of Property bylaws, and interfere with future sales, all contrary to the best interests of stratas.

NAME. To be fair, I should have mentioned that PMs/councils usually prefer to promote AOLS over  3/4 votes for significant changes pursuant to s.71 of the SPA, or user fee bylaws pursuant to s.6.9 of the SPR. 

NAME. You make a very good point! An alteration that is a significant change to common property is decided with a 3/4 vote of owners, not council. This transfer of power and control explains why PMs/councils prefer to force s.43 petitions, rather than put s.71 requests on AGM agendas. Owners may be better off the request a s.71 decision than permission from council. That way, if council refuses to put it on the AGM agenda the decision will be in s.35 minutes, making it that much easier to collect signatures.

NAME Given the boundaries of a strata lot set out in s.68 of the SPA, piercing the building envelope to install HVAC for a strata lot alters common property. Pursuant to the definitions in s.1, common property means pipes, wires, cables, ducts and other facilities for the provision of heating and cooling systems if they are capable of being and intended to be used in connection with the enjoyment of the land. Section s.244 of the SPA says that the strata plan shows the boundaries of the land and, except in the case of a strata lot in a bare land strata plan, the location of the buildings. Further to that, the CRT decided in the Bowie case that the whole heat pump system in a strata lot is common property.  

NAME. First, the question asked used the word "required" not asked so I repeat, an agreement must be voluntary. Second, the question asked about common property, not strata lots. When you say that they can't say no without a good reason, the standard bylaw for that refers to strata lots, not common property. Third, and perhaps most important, don't trust CHOA over the SPA. The SPA prevails.