Nuanced. - 126. Doug Harris: Condominium Law, Strata Corporations & the Evolution of Urban Living

Episode Date: September 12, 2023

Peek behind the veil of condo ownership with esteemed guest, Professor Doug Harris. Together, Aaron and Professor Harris traverse through the evolution of condo ownership, from its 1960s beginnings to its modern-day role in urban living. Their conversation dives into the unique dynamics of condo living, exploring landlord-tenant relationships, co-ops, detached parcels, and the intricate legalities such as residential tenancy laws and strata corporation governance. They also examine the challenges municipalities face in providing rental housing, consumer protection in multi-unit developments, smoking rules,  and Doug’s call for thoughtful housing policy.Douglas Harris, a professor at the Allard School of Law since 2001, has significantly contributed to property law and legal history, authoring award-winning books on Indigenous fisheries in British Columbia. After his call to the British Columbia bar in 1994 and playing in Canada's Olympic field hockey team, he pursued further education, earning LLM and PhD degrees in legal history, and later served in various administrative roles at UBC, receiving teaching awards. Currently, he's focusing on condominium property law, co-authoring a leading Canadian property law casebook, and fostering collaboration on law and cities through the Law & Cities Research Group.Send us a textThe "What's Going On?" PodcastThink casual, relatable discussions like you'd overhear in a barbershop....Listen on: Apple Podcasts   SpotifySupport the shownuancedmedia.ca

Welcome back to another episode of the Bigger Than Me podcast. Here is your host, Aaron. Do you live in an apartment, condo, or townhouse complex? More and more, we are seeing multi-unit developments that are governed by the owners. These strata corporations can impact your ability to smoke in your unit, have pets, and other aspects of your life. The question has to be asked. What are the benefits and consequences of these entities? I'm speaking with a professor at Peter A. Allard School of Law at UBC, who has to be asked.

teaches condominium law. And we will be exploring these issues and so much more. My guest today is Professor Doug Harris. It's such a pleasure to be doing this. I've been looking forward to speaking with you for such a long time. Would you mind introducing yourself for people who may not be acquainted? Thanks, Aaron. It's a pleasure to be here. My name is Doug Harris. I met you through the law faculty where I am a professor. I have been since 2001. Your area of interest is somewhat unique. Can you talk about that? So interestingly, I think my area of interest has changed somewhat. When I was hired in 2001, my principal research focus was on fisheries law and the regulation

of the Aboriginal fishery in British Columbia. One of my core teaching areas was property law, and there was some connection between fishing rights and property, but as I began to teach and explore property more closely, I I discovered the condominium form and quite quickly decided that if I was to teach a property law course that was to make sense in Vancouver where increasingly the dominant form of ownership is the condominium form, I had to pay attention to it in the classroom. It was important for students' personal lives and for their future professional lives. And so what began is a few lecture notes scribbled on a piece of full scab turned into a full-blown research interests. Somewhat to my surprise, my teaching ended up driving my research rather than the other way around. It's fascinating because you kind of get to see that there's this form of law that people don't often think about,

but it's so, I would say, invasive into people's lives, like it can have such a drastic impact. What stood out to you? What made you interested in it? Well, I guess the first thing was to understand it. Maybe I was interested because it was so prominent. It's the situation now that one-third of Vancouverites and 30% of the greater metropolitan region live within condominium. So it's very quickly becoming the way in which people own land, if they're fortunate enough to own land, or even if there is a renter, commonly they're renting within condominium.

So I guess I was drawn to its prominence that it really was becoming the dominant form of ownership. And I guess I've always been interested in cities and I'm interested in places and in the places that I live and work. And so I think my interest came from really wanting to understand Vancouver and not just Vancouver, but the larger metropolitan region. and really the province, and then discovering that this form was prominent, not just here, but elsewhere. And wanting to try and make sense of it for students in the classroom. It's a new type of relationship. In the past, we might have had farms or distance between ourselves. Now we're on top of each other.

We're side to side. It somewhat changed our relationship to what it means to have neighbors. Is that something that stood out to you? I think so, but it took me a little while to figure that out. So the condominium package, or what we call strata property here, but it's the same legal form involves three things. It involves private ownership of an individual unit. It involves a share of the common property, so the owners of individual units together own the common property, the entranceway, the elevators, the pool, if there is one, the grounds. And then a right to participate in the governing structure in the strata corporation or the condominium corporation.

So it's an architecture of ownership that is not only increasingly common, but that also builds into it a structure of local government. And so again, I was drawn to it because it's a form of property that's also a structure of government that has the capacity to shape people's lives, that the decisions made by the Strata Corporation will absolutely affect. the people who live within that development. And then it also has the potential to affect the larger urban or suburban or rural context. There's now a new site of government, a condominent corporation that's interacting with public

forms of government like a municipality or a regional district. Right. Let's start with the benefits, because there's lots of challenges, of course, that come with this structure. The benefit is that there's a certain amount of affordability that's increased, by having a large apartment building, by having townhouses, it makes it more accessible to start to get access to land, as you were kind of describing. What other benefits do you see in this new type of legal structure? Yeah, so interesting, it gives greater access to land as an owner.

So in the 1960s, when condominium or strata property was being introduced around North America, in every state and the U.S. has its own statutory form, and every province in Canada has its own statutory form. The justification was that it would create the possibility of home ownership for more people. And it was a very conscious response to urban decay and to flight from cities. So people were moving out of cities, at least in part, because they could be owners outside cities as land prices increased. And so the condominium form allowed people to come back into cities as owners. now not of a single detached house, but of a two or three or one-bedroom apartment.

And so it was very consciously an opportunity to increase owners. And this was thought to be a good thing, right, that people who were owners, so the argument went, would be more invested in the community and the neighborhood, in the city, the spaces in which they lived. And so it was designed to enhance ownership. It was described as an appropriate free market response to a housing shortage in a Cold War context, right? Where there was a very clear other model, which was, you know, the Soviet Union and the social or public provision of housing and no private ownership. Condominium was the market response to housing. So that was the big driver.

but something else that condominium allows is for this local structure of government and so a group of owners have the capacity to construct a particular type of community and it's really the developer in the first instance that has that capacity but but then the owners take over and and they can construct rules that they all agree to live by that that regulate the common property that regulate the use of the individual units so So there's the enhanced possibility of ownership and of a degree of local control. It's a, you're being very cautious with your words about that it was a claim that it would deliver these things more ownership, more access to opportunities. Do you think that we've delivered that?

Do you think that the condominium system has delivered more ownership for people? We're in a time where ownership and the idea of ownership still seems so far away for so many people. And yet we have this structure and we accepted it. And it still doesn't seem like it's been any easier for people to get access. What are your thoughts on where we're at with ownership? Well, so I think it certainly created the opportunity for more ownership in the sense that if the only thing that was available to be owned were single house lots or whole apartment buildings, then very few people could be owners, right? wealthy enough on the single house lot or the apartment building. And then everybody else, who didn't know the lot or the apartment building, would be a tenant.

So I think it does create the possibility of greater homeownership. Whether homeownership within the condominium form is something that's more desirable than, say, a secure tenancy within an apartment. right one could be in that apartment as a as a renter that two or three bedroom apartment as a as a renter if there were sort of secure tenure within that space then then that would be another option right right we didn't have to choose the homeownership model but but that was the direction we've gone what do you like about cities as somebody who's grown up in a more rural setting I see some of the arguments what do you enjoy about living in the city I love the people

the encounters with people the spaces that are created the energy the life the productivity the ideas cities are incubators for ideas and they bring a whole lot of people

into close proximity and you can't help but bump into people into cities that's both the disadvantage but also the attraction and in bumping into cities these inadvertent encounters with strangers that happen again and again in cities can be really productive and not productive only in economic sense but in terms of building a human community

So I've always been fascinated in the spaces of cities and the way in which people occupy and use those spaces. And property is a crucial part, right? The lines that we draw that say this is mine and that's yours and I have the capacity to say whether you come in or out are really important. And so it's led to my interest in the condominium form as in. is an architecture of ownership that's defining those lines. Let's break that down and maybe start with renters because it's a growing area and it seems like we're trying to support people and accepting maybe you won't own a home one day.

Maybe the life of a renter is actually easier. You don't have to take on the responsibilities of certain home maintenance. You don't have the obligations of maintaining certain aspects of your home if you're a renter. What do you think the benefits and challenges are with being a renter? Well, I guess there's two, maybe two principal drawbacks to being a renter. One is that one does not get to participate in the increase in value of the land that you're renting. And in our society, land has become an enormous source of wealth.

And so if one as a renter is not able to participate in the building of that wealth, then you're at a disadvantage. So that's one, the other piece is, is a security of tenure, all right? So as an owner, one is secure. Now, now there's limitations, right? You're secure if you make your mortgage payments and there's also limitations if you're within a community of owners like condominium, but your tenure is secure. As a renter, your tenure is, you're, your tenure is is less secure. So in British Columbia, if the landlord wants to make use of the space

that you're renting, then that's cause for eviction. So I think those are the two things that may be a principle among them cause people to want to be owners. That and the fact that we built in a whole set of incentives in our tax system

and to encourage homeownership. And there's also a strong cultural ethos that as an adult, one part of being an adult is to become an owner of one's home. And so being a renter is sort of working against all those things. Philosophically, where do you land? Do you think that people should, do you think that that's a good cultural ethos when we think of living in a capitalist society? do you think that the challenges we're seeing to that idea are warranted and that maybe we do need to change our perspective? What are your thoughts? Is it truly more beneficial to become an owner?

Yeah. So I certainly appreciate the advantages of ownership and we have constructed a society where the advantages are considerable. But I think what's most important is not ownership, but security of tenure, right? that people are confident that the space that they occupy as their home is theirs to occupy as their home. And one can do that with a different set of residential tenancy rules than we have in other parts of the world. You know, renting is much more common than it is here. People are much more secure in their tendencies than they are here. So I think the crucial piece is security of tenure.

Now, if one also wants to use land as a means of generating wealth as well, again, that's another choice we've made. It needn't be that way. But it's a social choice that we've made that land now becomes one of the principal sources of wealth in our society, in some cases, even more so than income. And renters are excluded from that opportunity. It seems like renters are somewhat at the bottom of the barrel in terms of their rights. When we're talking about the law, the power that they have is limited. Am I correct in that? Well, I guess if one thinks about the range of options for residences or for home,

and if we have homeowners at one end and homeowners on a detached parcel of land as sort of the premium, And then you would have homeowners within condominium who also own a parcel of land, right? They have a fee simple interest or a property interest in their unit. But there are other forms like co-op where one holds shares in a cooperative association that owns the building, and those shares entitle you to a lease to your unit. And they could be social housing co-ops or they could be market co-ops. And then they're – and then renter. So let's just think about it on a spectrum.

as one could think of renters at the bottom end or at one pole. But renting, as you point out, isn't without its advantages, right? It enables a flexibility too, right? You're not tied down to a place if your job goes somewhere else. It's no, one doesn't have to sell and move up and buy somewhere else. one can rent somewhere else. Right. It also seems like there's a supply and demand issue, perhaps, in this regard,

that there is such a high demand right now for rental spaces, that that somewhat puts all of the power in the hands of the landlord. Am I correct in that? Yes, right. So rents have gone up a whole lot. And in part, it's a function of the fact that there hasn't been much dedicated rental housing or purpose-built rental housing. So in Vancouver until recently, there was almost no rental housing built.

It was all condominium buildings. And so then investor owners within condominium became the principal source of new rental units. And in a sense, that's less secure if you're a tenant than a purpose-built rental. An individual owner of a two- or three-bedroom apartment could decide it. point that they want that two or three bedroom apartment for their own use and that's caused for eviction. A purpose-built rental structure owned by an institutional investor can't make that same argument that we need it for our own use. So the purpose-built rental, which we weren't building for a long time in which cities have now tried to incentivize, certainly Vancouver

has in other jurisdictions in the lower mainland, by allowing developers to go higher or more space if they build a rental rather than a condominium building are designed to encourage that purpose-built rental housing. Leases seem like the next step up from this position and gain somewhat more rights because they have an agreement for a certain period of time. You're able to sub-lease. Is this the next ring up? Is this the next step upwards in terms of having rights and access to authority to use that land?

How do you please? Yeah. So long-term leases, and the common standard would be 99 years, that one has a prepaid 99-year lease. And so you live in it for 20 years, there's 79 years left. You can sell those 79 years that are left to somebody else. And there are a few entities that are able to use those within the condominium forms. So public bodies, cities, the university of British Columbia. and other universities use the leasehold form within strata property to create 99-year leases.

Interestingly, now a number of First Nations in Vancouver are also using the 99-year lease. The legislation has been, the Stratop Property Act, has been changed to allow the Muscum and the Squamish and the Slawa Tooth to use leasehold, long-term leasehold interests within the strata property developments that they're building. That's a really interesting development in that it allows for a different model of development. The common model is a developer, acquires land, builds a structure, sells, and moves on. Muscum, Scormish, and Slavewit, and other First Nations around the province aren't interested in moving on, right? They're acquiring land, they're building, they're selling as an income-generating opportunity. but they're remaining as landlords using this form of property to retain some ongoing jurisdiction

and say over the property on which they're building. Right, and we're seeing that a lot in the Fraser Valley as well. And my only hesitation is it's an imperfect product when we're talking about potential ownership. It's a challenge that people have access to 99 years, but that's very difficult to explain and to teach people. there's going to be like a learning curve involved in that and that's my only hesitation with communities getting on board with this is that it's not what we're used to it's something different and so it has to be explained differently people have to understand their rights

differently and then there's different benefits and challenges that come with that for example the residential tenancy act doesn't apply on reserve and so what process is that first nation community going to develop when we're talking about those leasehold interests yeah those are good points and and you're right another space in which the 99 year lease has been used is, is on reserve land. And one of the crucial things that's really important that all parties understand at the outset and any party that subsequently becomes an owner of that whatever's left on the lease of that 99-year lease, what's important for them to understand is what happens at the end

of the lease, right? What are the rights of the respective parties? because leases, I wouldn't say they're imperfect in the sense that perfection is the fee simple or it's not absolute ownership, but as close to absolute ownership as exists in the common law. It's not that that is perfection, but it's just, it's a different ownership relationship, the leasehold than the freehold. And it's, as you point out, it's really important to be clear what that leaseholds. or lease contract provides, and particularly for the end of the 99 years, right?

Who owns what? Does the tenant still own the building and the improvements, and the landlord own the land? Does the landlord acquire everything? What happens at the end? That's crucial. Do you know the answers to these questions, or are these things that we're still working out in different communities

have different approaches to them? Well, I think it depends on the individual relationship described in the leasehold contract, So there isn't a standard that says this is what it has to be. There's rather a number of different possibilities. And the city of Vancouver is in a dispute with a group of owners in Falls Creek South, that development from the 1970s and early 1980s, where it isn't clear exactly what happens at the end of these long-term leases. result, the parties are in dispute over whether the tenants are entitled to be there indefinitely

or whether at the end of the lease, the city acquires the land in the building there, this is a problem. It's a conflict because of the uncertainty in the leasehold document. Landlord tenant relationships seem fraught at times. They seem challenging when we think of being able to own pets, when we talk about putting up paintings, To have a connection with the property, it seems like there's these fine lines that we need to walk and that kind of develop who we are when you think of often in Vancouver, it's a challenge to find a place that allows you to own pets. And I know that the city of Vancouver is working to let people within their own spaces own and have pets in their areas that they actually, like, co-op or share with tenants. Do you see these as common challenges? Do you think that the line is fair in this regard that there is a healthy relationship?

between tenants and landlords, or do you think that these key issues impact relationships? Well, so they absolutely impact relationships, and it's not just tenants and landlords, but it's also strata corporations and individual owners or tenants in strata corporations because strata corporations also have the power to say no pets, or only one cat,

or only one cat and one dog and three goldfish, or right, there's a number of, of, different arrangements possible, but we've extended that power to landlords and to communities of owners in the Strata Corporation. And I think it's a really, it's an example of, well, I think we need to be clear that that grant of power is a policy choice. And we need to ask, as you're doing now, is it the right one? And BC is more restrictive when it comes to pets than many other jurisdictions.

People are often surprised to come here and they think the laid-back West Coast lifestyle and pets. And, no, and they encounter all these rules that, as you say, make it very difficult to be a pet owner if you're trying to rent an apartment. And also, if you are buying an apartment or a townhouse within a strata property form. So my own personal view is that I'm skeptical of these powers that allow for no pets. I would restrict the capacity of landlords and of strata corporations to create a no pet's rule. How far does that go? What other issues do you think that we're missing where we could sharpen ourselves a bit and act a little bit more fair to both parties so that there are incentives for people to consider renting,

that's something that they're interested in, because that certainly discourages it. When I say that renters are at the bottom of the rung, it's because they don't have any authority to go against the landlord or the strata corporation. They don't have that individual power, and it seems like it would be a challenge to kind of get everybody together to make such policy change. Yeah. So one of the decisions that was made in the early 1970s when residential tenancy law was reformed, and so it used to be that residential tenancy was treated.

the same as commercial tenancies. And this was a problem because in a commercial context, one can imagine relatively equal parties bargaining over the use of a space. In a residential context, more commonly there is a significant inequality in bargaining power. And the common law didn't recognize that inequality and bargaining power. The rules were the rules. And if a tenant was in breach, the landlord had remedies. In the 1970s, when the Residential Tenancy Act was introduced, a decision was made then to create an individual complaints mechanism.

So the precursor to the Residential Tenancy Board was introduced and allowed individual tenants to bring a complaint against a landlord who was violating the terms of the lease or the act. that can be hard, right, as an individual to bring a complaint. The time-consuming, the cost barriers aren't that high to bring in application. It's mostly time and energy and the desire to fight can be difficult when one's carrying on with the rest of one's life. And what we didn't do was take another path, which was to allow tenants to organize collectively As I say we do in an employment context where employees can combine to organize collectively in the form of a union. In a residential tenancy context, we said, okay, it's an individual complaints like in employment standards rather than a collective bargaining.

It's an individual complaints-based mechanism. And while that certainly provides tenants with some recourse, it can be challenging. And so one then possibility is to think through what allowing tenants to organize collectively might look like as a way to, as you put it, rebalance the interests between landlords and tenants. How much, when I think of Vancouver, it's my again understanding that they decided with properties that they own where they allow renters to live, that they changed some of their policies and encouraged other private industries to consider doing the same. Do you think that that's one way of trying to get this recourse,

going straight to government, whether it's municipal or provincial, to try and have them reconsider how just the policies are developed and how they're designed? Yeah. So absolutely, I think the city's municipalities can be using some of their land and dedicated to housing and dedicated to a particular type of housing, rental housing. I mean, these are things that I sort of pay attention to in the news and the media.

They're not things that I have particular expertise in, right? It's the legal form where I sort of feel like I'm on firmer ground than these broader questions of what is the best way to provide housing. And it's certainly clear that supply is a problem, right? that there's just not enough, but how much of the problem is supply, right, and how much of it is the legal structure that we've created? Those are important questions. Stratta corporations are somewhat unique. And again, I don't think many people, if they are a part of Estrada, know who their representatives are, know how they would vote for potential representatives,

like when you think of voting in a provincial election or a federal election, you kind of maybe have some things that are key issues to you. How do you think about voting? for people on a strata corporation is a completely different question. What are strata corporations from your perspective? Well, a strata corporation is the governing entity. So what we did when we created the strata property model was diffuse principles and doctrine from property law and corporate law, right? And so property law creates the ownership package.

and corporate law provides the governing structure. It's a corporate form. And so the Stratta Corporation is not the owner of the land, right? It's the individuals who are members in the Stratoc Corporation that are the owners of the land. So the Stratta Corporation is not the principal asset holding body. It's just the governing shell. And then the owners from among themselves elect a strata council.

So a governing body that's charged with ensuring that the Stratta Corporation fulfills its responsibilities, including the maintenance of the common property and the enforcement of the rules. And so that governing council, that Stratta Council, is a crucial body. And it's the members who from among themselves elect that body. and so you're right. This isn't like parties with known platforms campaigning for positions. It really is individuals who are volunteering their time as board members and volunteering their time often in a context where they're being asked to make decisions involving millions of dollars.

Do we replace the rain screen, the windows, does the furnace get upgraded this year or next year? there's a developer's offer for the whole complex. Do we proceed with a vote on a collective sale or not of the whole complex? The Stratoc Council is charged with making a whole set of important decisions and their volunteer board members. So those decisions have a huge impact on the people that live within. When we think about electing leaders, we obviously have some sort of rubric we're thinking about. When we think of trying to choose judges, we have appointments, we choose select people based on some sort of logic.

Do you think the elected model is an effective style? Do you think that it's working? Well, so what strata creates is a structure of private local government, and it's private in the sense that is that the owners have the capacity to choose the council and devote on the important decisions. So some decisions will be made by counsel, some will be made by the owners as a group. And so, right, so at one level it's a representative democracy. As another level, it's a direct democracy, but private, right, private in the sense that tenants who are there don't have a voice. They're living within a community where the owners have the votes, but not the tenants.

And so, right, a whole number of important questions flow from this. Is this a good structure of government for those who live within? Because it's certainly going to affect the lives within. What is the relationship between this structure of government, this group of owners and their council, and other governments that they are going to interact with in principally municipalities or regional districts or cities? Because what we've created is another layer, another layer of government, another rule-making and rule-enforcing body.

And one of the questions is, is that other layer of government, that private layer, displacing the public? Is it acting in a way that's assuming roles and functions that we, for the last century or more, have asked public governments to perform public governments where residents have a vote, not just owners. So it's an interesting move and potentially a problematic move if we've tied back one's capacity to participate in an important level of government to ownership, not to residents, not to citizenship, but to ownership. The example I'm thinking of when you're describing that is this idea of a developer looking at a big piece of land and saying we're going to put in houses, we're going to put in lights, we're going to put in lights, we're going to put in lights, we're going to put in lights. And to a municipality, they're like, that's perfect because then we don't have to pay for the roads and pay for the lights and pay for all of that development. They get to save money. So there's an incentive on their side to say more housing without the same bill that we would have to pay to support that if people were just looking.

and building house here, house here, house here, and so there's benefits, but to your point, there's some risks involved in that, if I'm not mistaken. Yeah, and so what you've described is another form of strata property that British Columbia introduced in the 1970s, and that's bareland strata property, where a developer can subdivide a piece of unbuilt land into single-house lots and then sell those single-house lots as as stradalots within a bareland strata property development. So it really took the strata property form, which had been designed for the subdivision of buildings,

and allowed the subdivision of unbuilt land. And it does a number of things, but principally among it what it does is it creates a structure of local government, with fiscal capacity. So now that bareland strata development with eight or 200 or 600 individual lots acts as its own governing community

and so the strata corporation is responsible for the maintenance of those roads of the lights of the sewer and water also of the amenities if there's a swimming pool and a tent. Sports, maybe there's a golf course, not very often in British Columbia, but and within the strata property form, there's now the fiscal capacity to charge owners to maintain these amenities and services privately. And so people within then have access to the tennis court and swimming

pool and the recreation facility or center. And and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, and, maybe even there's a gate and a security guard and the owners collectively pay for the camera and the security guard and the gates. Strati Corporation provides a governing structure, creates the capacity to generate the fiscal capacity to fund the private provision of services. And so it does raise the question, are we creating separate spheres, right? a private sphere with access to a higher level of amenities and services and an impoverished public sphere. And we haven't gone very far down that road yet. Certainly not to the same extent as this has happened in the United States, where there's the equivalent of bareland strata and homeowners associations that are not tens or hundreds of units, but thousands

and tens of thousands of units, they really are private cities. And that's a scale there that doesn't exist here, but the same sorts of questions begin to apply. Is this structure of government good for the people who live within? And is it good for the larger society? There was actually a great John Oliver piece, all about kind of homeowners associations in the U.S. and the challenges they face of somebody seeing that they had like a garbage can in the wrong spot,

and they got fined $50 for that, and how kind of outlandish it can start to get when you're operating a private government at that scale and how it can have deleterious effects on the people who live within it, you're a person who understands the case law well. Can you walk us through some different cases that stand out to you of how complex these relationships can be?

So certainly there's a, you know, municipality set rules and can also find for, you know, if you're in an area with bears and you put your garbage out too early or you don't lock the lid or whatever the rule are, you can also be fined. But within Strata, there's the opportunity of an even more fine-grained regulation. So you can't park your RV in the driveway except for 24 hours when you're loading and unloading.

And the paint on the house has to be from this palette and the roof has to be this material. And the drapes can't be these shades of purple. And you can't put a flag. And so the whole set of fine-grained rules are possible. Now, they will be subject to human rights code and to human rights protections, so they can't discriminate in a way that is prohibited into the human rights code, so on the basis of gender, religion, or sexuality, or a range of different enumerated grounds.

So stratac corporations, and that government is subject to that, that to the human rights code. But we have allowed significant power. And so some examples, the examples you raised earlier around pets are often a flashpoint. Another flashpoint until recently British Columbia allowed for no kids, and no kids rule. Stratocor corporations could say this is a 19 plus development

or a developer might in the first instance. power was taken away last year, but 55 plus is still possible, right? So it can be a senior's only development. So this is a considerable power that we've extended. Another example in one that I know you've thought about at some length is smoking. And not because you're a smoker. I don't know if you are or not, but I know you thought about the capacity of strata corporations to restrict smoking within units. and whether that's a permissible power. That one's really interesting to me just because if you're allowed,

often drinking gets compared to smoking. Like they're often put in the sleep, and then it's unique that that doesn't really apply when you're in a unit, when you're in your apartment building or something, that that same logic doesn't apply. You can drink in your unit, but because smoke permeates,

because it moves, it has different rules and regulations around it. And even if you were to put it, in certain barricades into place or something, it still has this rule where if you're on your balcony, it's what feels like it's your balcony, but it's not. It's considered somewhat a public setting. And so those, it was interesting, as you've kind of described, to start to see where these lines are. Where do we draw these lines? And that's what I've always found of fascinating about the law is because we think in black and white and then we get into the law,

which is often in gray areas, and where do we draw these distinctions and lines? And smoke seems somewhat unique because it gives you this kind of idea of how far does it go. Yeah, and it's one example of what Stride corporations spend a lot of their time doing, which is regulating the interactions between neighbors, right? So regulating nuisance of behaviors that might cause a nuisance. And so smoke is one, and noise is another, right? Noise travels, noise bothers, smoke travels and can bother. It can be more than a bother. It can be a health problem. For some, you have challenging situation where some are addicted to smoking and some have

medical conditions that make them particularly sensitive to smoke. How do you balance the same with cannabis use for medical purposes. Some people need it to treat a medical condition. Others are particularly sensitive to the smell and can't be exposed to it because of a medical condition. So balancing nuisance within a stratac context is a real challenge, and that's a responsibility that the legal form places on the community of owners. Do you think it's consistent when you think of somebody living on a farm and their neighbors

a couple of acres away, they don't have that much interaction, so they don't have as many issues with each other, perhaps? Then you think of people being stacked on top of each other, left to right, to downstairs, all around them, that we see. that cascading effect of interactions so we have more issues, so we need more policies and we need more rules to kind of govern them? And do you think that that privatization of governance is growing where this is being hashed out less in our court system and more in these private settings? Yeah. I think your observation that the changing spatial organization of owners that

Kondominium allows is really important. Our idea of the ownership of interest in land emerged in a context where neighbors were side by side in a single layer over the surface of the earth with a fence line dividing them. And it might be in a city, it might be in the country, they might have a little more space, but your neighbor was beside you. There might be people with subsurface rights and maybe airspace rights, but really owners were side by side. And what condominium allows, the strata property allows,

this massive increase in the density of owners, right? So where there was one now on a parcel of land, there might be hundreds stacked in a vertical column, many stories high. So this isn't since spatially what's new about strata property, is that this allows not so much for an increase in the density of people because that was possible in residential tenancy towers where people were renters, but an increase in the density of owners. you have now this massive increase in the density of owners

and so what does it mean to be an owner in this new spatial context where they're above you and below you and beside you and many stories above you and one of the interesting challenges that the laws had to confront is what to do with chronic antisocial behavior what happens in a context where an owner's behavior

behavior is damaging, destructive, maybe even dangerous to the other members in the community. It may be that they're loud, they play loud music, it may be that they're threatening that they are creating by accumulating stuff, a fire hazard, or what happens in a context where an owner refuses to abide by the rules that are intended to govern relationships. between owners and the courts in British Columbia and Ontario have begun issuing eviction and forced sale orders. So an owner who is chronically refusing to abide by the rules and is destructive of the community might be ordered by a court to leave the premises and to sell their property interest. Now this is a new development in property law, an owner of a single

house lot is never going to be ordered by a court for antisocial behavior to vacate the premises and to sell. But within, they might be evicted because they haven't paid their mortgage payment, made their mortgage payment, or the police might be called, or they might be taken to court by a neighbor for causing a nuisance, but they're not going to be ordered out. They're not going be expelled. Courts are now expelling owners within condominium. And I think it's a function of what you've described, which is this increased density of owners and the law of property having to adjust to this new spatial organization. How do you feel about that? Do you think, as someone who's reviewed it, do you feel comfortable with this? Do you think that that is a

reasonable next step? It seems somewhat inevitable when you're talking about, again, this identification where one person can have such an impact on other people's lives. And when you think maybe the person upstairs is a nurse, maybe the person downstairs is a police officer, or maybe the, like, you think of the impact you're having on these people's lives to do their jobs properly and that you can have such a strong effect on one individual, do you think that this was an obvious next step that was almost inevitable? You know, when I first found these cases and started to chronicle them and to read them, I thought, I thought, yes, right?

This makes a lot of sense that ownership involves a set of rights and obligations. And at some point if you fail to fulfill your obligations, an expulsion order is reasonable. But when I dug a little deeper, what I discovered was that in the majority of cases, there's some mental disorder, mental illness underlying that behavior. There's in many cases, even most of these cases, a mental disorder that makes it difficult for someone to live in close proximity with others. And so the courts are expelling people who, in some cases, it's an underlying mental disorder that's causing the behavior. And that gave me pause because, you know, on the one of the one. one hand, considerable sympathy for the other owners whose lives are upended and in some cases

the behavior, in some cases the behavior can be quite violent and aggressive and threatening. In other cases, it can be passive as in a case of a hoarder. The hoarders aren't, but hoarding can cause all sorts of dangers, fire dangers, water damage, pests. And so in that context, where other people's lives, property, and the sense lives are upended or maybe even threatened. I thought, okay, this is a reasonable response, but the mental disorder complicates things. What's happening is that people with a mental disorder are having their property interests diminished. and those who are in the unfortunate position of sort of by accident of geography having to live beside someone

their lives are being upended so I can see the challenges here and it feels as if the response the expulsion response is inadequate right it can't be only on the owners who happen to live with this person who's mentally ill for them to be responsible for the person. But in expulsion order, it's like a blunt tool. It does feel like a blunt tool. And so there's a larger collective responsibility. But this is where property law is intersecting with and grappling with the challenges of mental illness, which is something that criminal law and other areas of law deal with a whole lot.

Property law is now also grappling with this. It also seems like you have such a variety. People like yourselves are open to the idea of meeting new people, having new neighbors, introducing yourself, building new relationships with individuals you might not have met, but then you have, maybe your next-door neighbor is a clean freak or somebody who's very committed to the cleanliness or doesn't like noise past 5 p.m.

and you're in these new relationships where you didn't agree who your neighbor was going to be next door or across the hall from you. And now you have to navigate these new relationships and you somewhat don't get a choice in who the next door neighbor is. And sometimes it's great and your neighbor is fantastic and you have a great relationship and you bring them some butter if they needed or whatever it is. And then you have these other situations where there are individuals who would not want to move in next door to each other. And you think of going back in time when people used to want to meet their neighbors when they were shopping for a house. They wanted to get to know the neighborhood and what the feel is and what the values were. This is somewhat condensified into this circumstance where you don't know who it's going to be. Sometimes you don't have a choice in what's affordable and what makes sense.

So you're now in the circumstance of navigating relationships. And it kind of starts with the strata as your kind of first point of contact if an issue arises. Yeah. That's one of the virtues, one of the attributes of the attributes of of strata property is that the strata corporation has no control over who you as an individual owner will sell to. So this is unlike a co-op where a co-op board, the members in a co-op have the capacity to decide who can join the membership. And so there is a gatekeeper function in or the possibility of a gatekeeper arrangement in a cooperative association that doesn't exist. in strata. Stratta corporations can't review and determine who can be an owner.

So what you end up with is a context where you have people living in a community and maybe the only shared value is that each of them wants to be a property owner. It's not an intentional community in the sense that there's a group of people sharing a particular idea of what community looks like or a particular set of values or are trying to construct a particular context. It's really a group of people who want to be individual owners who are thrown together within the strata property form and have to get along, or at least don't have to like each other,

but they have to govern together. Here's a thought experiment. I think of the 55-plus age group as somewhat trying to address this through other means by saying this age group, And perhaps you get people who typically view things in a similar way from their generation that are going to be somewhat consistent. You think of a university campus who are mostly on university campuses, young people between a certain age range. So you're getting sort of groups of people.

Do you ever foresee a world where we start to market condos and communities based on this style saying this is the type of people we're looking for to buy and to live in our condominium? Yeah, absolutely. And it already exists, right? So the 55 plus developments are very consciously, seniors only development. And so, right, so a development where people have chosen to live in a community without children or without young adults, right? So they don't want the noise or disruption or the play, right? The rambunctious play of kids. They don't want the perception that, right, in the 20s and 30s, and 40s, people are more inclined to have parties and make more noise. So it's a conscious decision and often one made by the developer in the first instance to say, okay, this is a, we see a market niche for a particular type of community that we can structure using the rules within strata property. And 55 plus is a very powerful tool for constructing a very particular type of of seniors-only community and some have there's a bareland strata property development on Vancouver on Vancouver Island that markets itself as an active adult community so

it's a it's a 55 plus community that that picked up an American marketing plan Sun City on outskirts of Phoenix where the developer clearly marketed this what's in effect of town as an active adult community. And so that was picked up on Vancouver Island. And it's very clearly using the strata property form to construct a particular type of community. in a particularly homogenous community, you know, certainly in terms of age. You have studied this for a long period of time, as you mentioned. It wasn't something that was right on your radar from the get-go.

It's something that kind of turned itself to you and showed you this new design and got you thinking. What has been one of your major takeaways from researching this for all this time? So condominium is, or stratop property, is a global phenomenon so we know we focused in most of the discussion

on British Columbia and to some extent Vancouver and the lower mainland but Vancouver is an outlier in the sense that among North American cities it has the highest proportion

of people living within condominium one third of residents in the city live within strata properties so this is the highest proportion in North America so it's an outlier

but it's also consistent with a larger North American and global trend, which is that if people are fortunate enough to be owners increasingly, they own within this architecture, this condominium architecture of ownership. And not only are they owners, but they're participants in these local governing bodies. And I think, you know, we often associate the condominium with the pencil-thin office tower and the elites are the urban sophisticated high amenity living. But in some jurisdictions, there's a huge condominium building project in Addis Ababa in Ethiopia, where the government

has decided that the way it's going to subsidize housing for the masses of people that are moving into the city from the country is by building condominium and selling them at a subsidized rate. So it's a global phenomenon. And it's a global phenomenon. And it's it's a really important development in the sense that it's part of pulling people into cities, right? The capacity to be an owner is pulling people into cities. And as we have since 2007 become a species that is predominantly urban, more than 50% of us live within cities, and that number is only condominium is part of that story. as money floods into cities to redevelop and build

and become sort of major sources of the building of wealth condominium is an important part of that story condominium is the vehicle that's pulling money into cities so it's pulling people it's pulling money in the cities and it's also causing us to to we understand

or it's part of the shift in the balance between public and private how we understand what's an appropriately private realm and what's an appropriately public realm

is being remade by these private local governments within condominium that are performing many functions like a municipal government might

so it's a really important it's a form of ownership but I think it's in some sense is one of the defining institutions of our time in that it's part of these major trends of people and money into cities and a recalibration of the public and private

and so I think it's a I think it is an institution of our time and this is not me promoting it but rather saying we need to pay attention to it and to ensure that we've got the balance of its powers, right? That actually leads me perfectly into my next question. It seems like individuals living in these systems may not know that they're living in one.

They may not know who their strata managers are or the council that represents them or what their values are. It seems like the everyday person who's renting or who's leasing or who's owning could be at risk of facing challenges that they didn't expect. And so I'm curious with the challenges that already exist between renters and landlords, what advice do you have for people who are in this system? How can they protect themselves, make sure they advocate properly for best practices? How can they make sure that this system works effectively for all British Columbians or all Canadians? So I think the most important thing is to understand what it is you're acquiring when you're buying into a strata property or a condominium development. And the package is at one level is quite simple.

It's your private ownership of your unit, the share of the common property with all of the other owners and a right to participate in the governing structure, right? That's the package at one level. Those few things are quite simple. but this capacity, this local capacity to govern, right, that we've granted to a group of owners is not so simple. It's going to affect the lives of the people within, and it's going to affect the relationship between those owners and the larger polity. And so as an individual buying in, I think it's really important that one does, one's best

to understand what it is one's buying, including the particular details of the rules within and all of the rights and obligations that you as an owner have within that. I think it's also really important for us collectively and for provincial governments in particular to understand that there is now this new site of government that they have created. strata property is a creature of provincial governments. They've created this site of government that's now sitting alongside municipal government and interacting with other levels of government.

And so individuals need to understand, but governments also need to understand that there's this new and increasingly prominent site of government that affects the lives of people and affects the larger society. And the powers that we give it matter to individuals. and they matter collectively. And there was very little discussion

when strata property was introduced. It was everybody just sort of thought it was a good thing and on we go. And it needs our attention. Right. That leads me into another piece of that is how do people get informed? Do you recommend they research

the Residential Tenancy Act and keep up to date on that? Do they go to Canley? How can people start to develop a deeper understanding of these systems? So there are a number of publicly available resources, including the BC government has sort of recognizing that it's created this form of ownership and of government provides information about it on the BC government website. So that would be a starting point. One of the relatively new developments is the civil resolution tribunal.

No, it's something that we've not talked about, but it's a really important development in that it provides a venue for owners to resolve disputes that's much more accessible and much less expensive than the court system. So the civil resolution tribunal provides a venue for dispute resolution and the decisions that the tribunal makes are publicly available. And so, right, that would be another place to begin to look. But your question points to another element within strata property and one of the justifications for why it was created in the first place was as a form of consumer protection. That if one was to be an owner in a multi-unit development, like an apartment building, here was the template.

It was a strata property template. And so you knew when you were buying it, you were buying a strata unit and there was a statutory framework and uh and it was set and instead of a whole set of no one could have it was um conceivable that we could have created ownership through a whole set of nested contracts and long-term leases and uh and complicated individual arrangements and so the the template form is in a sense a form of consumer protection that's, if you're going to be an owner, well, this is the structure. And so that limits the amount of investigation what has to do.

One doesn't have to understand a complicated set of legal arrangements that you might without the strata property form. But there's still a fair bit of digging that needs to be done in. And one relatively recent development is to combine strata property with the subdivision of land through airspace parcels. So you start with a parcel of land and developers can subdivide that parcel into

discrete volumes of space above and below ground airspace parcels and then once a building is built up each of those airspace parcels can themselves be subdivided with the strata property form and so you have

strata units within strata corporations within airspace parcels that are subject to a complicated set of easement agreements between airspace parcels. So we're in danger of creating too much complexity. And to go to your question of, so how did people find out about it? Well, we're in danger of creating a form of an architecture of ownership that's too complex to understand. You've done an excellent job of leading me into my next question.

I just recently interviewed a minister for agriculture. So I have the pleasure of speaking with people who understand government, provincial government specifically. What advice do you have for them? If you were able to sit down with the minister for housing, how do we make sure that we move this giant ship in the right direction? Are there things that they need to just look at in the short term, in the long term? How do we make sure that we keep this province afloat and moving in the right direction? So I think with strata property, and this is probably key for most areas of government, but talk with people.

So the recent changes to the Stratop Property Act, which the government made last November, and they involved two principal changes. One was restricting the capacity, removing the capacity of strata corporations to prohibit rentals. So it had been the case that strata properties could say this is a no rental building. That's no longer possible. So that was one change. And the government did that. Ostensibly, it argued, to increase the rental pool. So that was one change.

The other change was that it removed the capacity to say this is a no-kids building. So it restricted the capacity to limit ages. The one exception is a 55 plus. So the power to prohibit rentals is gone. One of the responses of strata corporations to this loss of the capacity to restrict rentals is to say, okay, we can no longer say no rentals. This was an owner-only building.

We're going to try and keep out the people that we think are likely sources of the type of behavior that we don't want. Those are likely younger people with kids and so this was a no rental building well we're going to now turn it into a 55 plus building right i think that was one of the unintended consequences of the government's change was to increase the number of buildings that use age restrictions as a way as a proxy for keeping out behavior that's not wanted.

And I think, you know, consultation at some point has to end and decisions need to be made, but those decisions seem to be made awfully quickly with relatively little consultation. So the larger question, though, about what I would say to a housing minister, I think what we've done for the last half century is largely leave the provision of housing to the market. And the condominium form is a prime example, right? It was the market and private builders who were going to provide the housing stock, and people would buy and sell in the market. And that works to a considerable extent.

but it's also true that there are a lot of people who are priced out of the capacity to be an owner or a tenant. And so I think I would urge governments to recognize that, well, the market is important and the private provision of housing is important. there is needed space for the public provision of housing. And that's going to take a form other than the condominium form. Or it's going to require government involvement in some way to subsidize the building or to provide the land or to create rental structures that are not subject to market forces. So to detach at least some sense. segment of the housing market, from the pressures of the market.

To force competition almost. I'm not sure if the public provision of housing, I mean, it would have to be at a scale that we've never seen in order to, in order, I think, to influence the behavior of private developers. Again, getting too probably local to BC, it seems like that's one of Minister Ebby's schools is to bring about more co-op housing, to bring about that we hadn't done that for a very, very long time and that it's time to bring that model back. It was a model from the 1970s and the 1980s when the federal government was involved

to in the provision of housing. And so sometimes that involved building rental structures and then renting out at subsidized rates. It also involved another strategy was to provide funds to cooperative associative. to build structures and then people could buy in as members. And again, there would be a range of possibilities. You buy in a subsidized rate or you buy in. But then when you leave, you can't sell to anybody at the market rate.

You could sell your shares for the price that you bought them plus 5% a year. There are all sorts of possibilities where public funds might be used to provide housing that was not so thoroughly embedded in the market as most housing is. How can people follow you? You're a very thoughtful individual, and this has been an illuminating conversation. How can people follow your work? All of my work is available through the Faculty of Law website. on, so if you go to my profile on the Allard Hall webpage, you'll find my work there.

Thank you so much for being willing to do this. I love diving into complex topics like this. And as you said, I think this is a growing area that people might not understand. And at a certain point, it starts to have real impacts in your life. And it can have a delicate, serious effect on so many people that we're not ready for it when it comes. So I'm glad that we were able to talk about this and hopefully illuminate listeners to, understand this in a deeper way. And thank you for the opportunity.

It's been a pleasure chatting with you, Aaron. I hope we do it again and get soon. Look forward to it.