A Vancouver strata has been told to stop enforcing its anti-hot tub bylaw, meaning an owner can keep his patio hot tub – for now.
Doug Fleming had installed a hot tub on his ground-level patio in a side-by-side triplex.
While tribunal member Micah Carmody said it’s not clear when Fleming installed the hot tub on limited common property, the June 27 decision said it came to the strata manager’s attention May 7, 2020, when he was asked to stop using it and seek council approval for it.
Carmody said Fleming did not seek approval and that the strata abandoned its position that approval was needed.
On July 28, 2020, strata council made a rule that prohibited the storage or use of a hot tub or jacuzzi, portable or attached, on common property.
Carmody said the Strata Property Act (SPA) says such a rule cannot be enforced until passed at the next annual general meeting (AGM).
The next AGM was held on Nov. 5, 2020, with the rule being one of five passed.
Eleven months later, the strata wrote to Fleming advising he was contravening the rule and must remove the hot tub or face possible fines. On March 18, 2022, the strata demanded Fleming remove the hot tub no later than March 21, 2022. The strata said if he failed to comply, it could fine him up to $50 every seven days.
Carmody said it was unclear if any fines were imposed.
Fleming alleged the 2020 AGM did not comply with the act. He argued the hot tub rule was not properly ratified because owners were prevented from selecting their own proxies.
Carmody said the 2020 AGM notice said the meeting would be held “via Zoom.” However, no Zoom meeting details were provided and the minutes show that only the strata president and one other owner attended in person, with 55 votes by proxy.
The decision said the AGM package included a "restricted proxy" form, where it identified two strata council members available to serve as proxies and instructed voters to "circle one only."
"Under SPA section 56, a person may appoint any proxy they choose other than an employee of the strata or a person who provides management services to the strata," Carmody said. "I find the strata contravened SPA section 56 because the 2020 AGM proxy form did not allow owners to freely select any proxy they wished."
The tribunal member ordered the strata to stop enforcing the rule but said “nothing in this decision prevents the strata council from making a new rule prohibiting hot tubs.”
