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I would like to know if an "Implied Easement" as outlined under

Resolved Question:

I would like to know if an "Implied Easement" as outlined under the BC Strata Act applies to a Strata Owners right to exit and enter over common property. Further, is such a right established if an owner has used this specific section of common property to enter and exit over the common property in the past.
Cheers, Roy
Submitted: 1 year ago.
Category: Canada Law
Expert:  Legal Ease replied 1 year ago.

Debra Thal :

Thank you for your question.

Before I begin I want to explain a bit about how the site works.

It may be that I will find that I need to gather further information from you. As well, it's quite possible that you may feel the need to ask me additional questions for further clarification.Please do not worry that you will be charged additionally if I ask you questions or if you need to ask me questions. That is not at all how the site works.

As well, please understand that as a careful lawyer I will always give you an honest answer even if the answer is sometimes not what you were hoping for.

Finally, as we go through the process please do not feel rushed if I ask you a question. You are always free to take your time to gather more information before you post back. As well, please understand that even after you rate me the post will not lock and you could always come back for further clarification if you think of something a bit later on down the road.

Debra Thal :

I need a few more facts.

Debra Thal :

Is someone saying you cannot do this?

Debra Thal :

And if so is this applying only to you?

Debra Thal :

Or is this about a by-law change, for example?

Customer:

This involves using a walkway through a courtyard to enter and exit a gate to the allyway from a suite located on the ground floor. This route was used without any restrictions for years. Now a bylaw has been passed that restricts the use of the access/exit route to the hours of 8am to 7pm for any owner; in addition, the bylaw states that all visitors must be accompanied by the owner when entering or leaving through this area. This bylaw severely restricts the access to my suite either from the owner or the invitees. For example I cannot take my waste material to the bin in the alley through this courtyard after 7pm....at times I want to do that at 11pm and when I do that the council issues a fine of $200.

Customer:

I feel that the bylaw has destroyed or modified the implied easement that was created over the years. Can I dispute the fines on those grounds?

Customer:

Cheers, Roy

Legal Ease, Lawyer
Category: Canada Law
Satisfied Customers: 86778
Experience: Lawyer
Legal Ease and 3 other Canada Law Specialists are ready to help you
Customer: replied 1 year ago.


I am still waiting for an answer to my question.


Cheers Roy

Expert:  Legal Ease replied 1 year ago.
Did the owners vote on this by-law?
Customer: replied 1 year ago.


Yes, they did and it was approved by the required number of votes at an AGM. However, there are only 5 suites on the ground floor adjacent to the garden and gate and about 20 suites above. So the vote carried....


However, the BC Strata Act speaks to a bylaw that destroys an "Implied Easement". The access through this gate and this courtyard is definitely an easement which is used by the suites on the ground floor.


 


Now these suites are severely restricted as to time of access and further all invitees going in or out must be accompanied by the Owner or Tenant.


 


The same does not apply if an owner/tenant or invitee enters/exits through the main entry door and common hallways.


Cheers, Roy

Expert:  Legal Ease replied 1 year ago.
I actually agree with your interpretation of the Act. I researched this earlier today and believe that you are right.

I think your best next step would be for you and the other ground floor unit owners who are willing to consult with a lawyer that does Strata law, face to face.

To be fair to the Council it's quite possible that they have no idea about the law. In any event, I think the Council should be told, in no uncertain terms, that the by-law contravenes the Act and is thus unenforceable.

The letter can essentially threaten a lawsuit if they do seek to enforce the by-law restriction.


You can contact the BC Branch of the Canadian Bar Association and use their Lawyer Referral Service. You will be given the name of a lawyer and can consult with the lawyer and the first half hour will be $25.

The number is:

604.687.3221 or 1.800.663.1919.

Let me know if you need any further clarification.
Legal Ease, Lawyer
Category: Canada Law
Satisfied Customers: 86778
Experience: Lawyer
Legal Ease and 3 other Canada Law Specialists are ready to help you

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