Date Issued: February 28, 2017

File: ST-2016-00056

Civil Resolution Tribunal

Indexed as: Cody Watson v. The Owners, Strata Plan BCS 1721, 2017 BCCRT 10

BETWEEN:

Cody Watson

APPLICANT

AND:

The Owners, Strata Plan BCS 1721

RESPONDENT

REASONS FOR DECISION
Tribunal Member:	Colleen Cattell
Counsel for the Respondent:	Philip Dougan

INTRODUCTION

 

1)        The applicant (Mr. Watson) is a tenant with two roommates occupying a rented unit in the respondent strata corporation (the strata).  He disputes the move in and move out fees charged by the strata when his roommates changed without moving in or out any furniture.

 

JURISDICTION

 

2)        These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims brought under section 3.6 of the Civil Resolution Tribunal Act (the Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

 

3)        The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

 

ISSUES

 

4)        The issue in this dispute is whether moving fees charged by the strata should apply when a single person in a multi-person occupancy moves in or out and no furniture is moved.

 

BACKGROUND AND EVIDENCE

 

5)        Mr. Watson rents a unit in the strata from the strata owner (the landlord), and has lived there together with roommates since July of 2012.

 

6)        On November 21, 2013 Mr. Watson’s former roommate moved out. Approximately a week later his current roommate moved in. On April 29, 2016 Mr. Watson’s girlfriend also moved in.

 

7)        On May 16, 2016 the strata’s property manager advised the landlord that the current roommate’s key fob had been disabled.   The same day, to reactivate the fob, the

landlord paid a $100 moving out fee for the former roommate’s departure in 2013, a

$100 moving in fee for Mr. Watson’s current roommate, and a $100 moving in fee for Mr. Watson’s girlfriend.

 

8)        Mr. Watson repaid the landlord for the moving fees charged by the strata.

 

9)        Mr. Watson does not dispute the move in fee for his current roommate but seeks reversal of the two $100 fees charged by the strata for the move out of his former roommate and the move in of his girlfriend. They both used the elevator to move their personal belongings but did not move any furniture. He describes the move out as consisting of six boxes and the move in as four suitcases of clothing.

 

The Strata Property Act and Regulations

 

10)     Section 110 of the Strata Property Act (the SPA) prohibits the imposition of user fees for the use of common property other than as set out in the Strata Property Regulation (the Regulation) The exception is found in s.6.9 of the Regulation, which provides that:

 

6.9      For the purposes of section 110 of the Act, a strata corporation may impose user fees for the use of common property or common assets only if all of the following requirements are met:

 

(a) the amount of the fee is reasonable

 

(b)  the fee is set out

 

(i)    in a bylaw, or

 

(ii)   in a rule and the rule has been ratified under section 125(6) of the Act.

 

The strata’s moving bylaws

 

11)     The strata’s original bylaws were filed in February 2006.  Bylaw 36 included a $100 fine if an owner or tenant failed to coordinate moves with the building manager at least 7 days in advance.

 

12)     Bylaw 36 was amended in July 2008 to add a move in fee of $100 and a move out fee of $100.  It also introduced a $150 refundable security deposit for any damage repairs, and an obligation on strata owners to orient tenants within one week of the move in date, to be confirmed by a written declaration signed by both owner and tenant.

 

13)     It was amended again in September 2011 to extend the maximum allowable move in and move out period from 2 to 3 hours and add a fee of $50 for each hour beyond the 3 hour limit.

 

14)     A further amendment in September 2013 expanded the application of the moving fee so that it may be levied against an owner and also a tenant or occupant. It also expanded the scope of the move in orientation by requiring a review of the strata bylaws and rules.

 

15)     The strata also amended bylaw 4 in September 2013. Bylaw 4 deals with rental information to be provided to the strata. The amendment added several provisions on moving, including bylaw 4(8):

 

4(8) Every time the occupant of a strata unit changes, the rental part of the Act and the bylaws apply; including move in or move out fees. Any person seeking a change of occupancy must apply to the Strata for permission to move in or out. The actual moving of furniture or personal belongings in or out at the change of an occupancy is not necessary for the move in or move out fee to apply to the unit in question. As a move in/out fee defrays administrative costs such as updating office records, reprogramming building fobs and access cards, programming the resident enterphone system, providing access for telephone and internet installation and locker/parking stall assignments, the move fee will apply to any person moving into or out of a strata unit regardless of whether any furniture is being moved. (emphasis added)

 

16)     Bylaw 4(9) requires that all requests to move in or out must be made 7 days in advance and be accompanied by payment of the fee. No move is to be commenced without confirmation from the strata.

 

17)     Mr. Watson does not dispute that bylaws 36 and 4 were properly passed. I find that the strata has complied with s. 6.9 (b) (i) of the Regulation which requires that user fees be set out in a bylaw or rule.

 

Evidence on reasonability of fees

 

18)     In support of its position that the fees are reasonable the strata’s evidence includes:

 

a.      a detailed chart including a description of fifteen duties performed by the building manager for moves in and out, the average time taken for each, and the corresponding salary cost. At regular pay rates the strata calculates the cost at 5.25 hours for a total of $138.81. At overtime rates the cost increases to $208.28.

 

b.      extracts from the bylaws of six other strata corporations showing a range of moving fees charged. They range from $50 to $200 per move in or out. Although the strata submits that the range is up to $300, in the example tendered the $300 fee appears to cover both the move in and the move out.

 

c.      the Owner/Tenant Information Form (OTIF) completed and signed by Mr. Watson and his former roommate in July 2012. Mr. Watson’s girlfriend’s information and signature was added to the same form in May 2016. The OTIF includes an acknowledgement that the tenant has received a copy of the strata’s bylaws and rules.

 

d.      the SPA Form K Notice of Tenant’s Responsibilities signed by Mr. Watson and his former roommate in 2012 and a Form K signed by Mr. Watson’s girlfriend in May 2016. In signing the Form K they agreed to comply with the strata’s bylaws and rules.

 

19)     Mr. Watson submits:

 

a.      several detailed charts challenging all but one of the fifteen cost categories set out in the strata’s calculations;

 

b.      a video of the strata’s front door enterphone system in support of his contention that resident names are not in fact entered as claimed by the strata in its cost calculations.

20)     The cost items and the calculations put forward by the strata and Mr. Watson are set out below, summarized from the detailed schedules they each provided. The strata calculates the moving in or out cost at $138.81 for 5.25 hours at regular time ($26.44/hour). Mr. Watson’s calculates the cost at $17.63 for 40 minutes of time. The only item which Mr. Watson does not take issue with is the strata’s calculation of 15 minutes spent updating its records with residents data from the OTIF and Form K (item 9):

 

 

POSITION OF THE PARTIES

 

21)     Mr. Watson  argues that almost all of the tasks listed by the strata are either not necessary or performed, that the cost estimates are excessive, or that the cost items do not apply when no furniture is moved in or out or there is only a partial occupancy change. He claims that the strata’s moving fee in bylaw 4(8) is unreasonably broad, or excessive in its amount, and contravenes s.6.9 (a) of the Regulation. He relies on s. 121(1) of the SPA, which provides that a bylaw is not enforceable to the extent that it contravenes the SPA, the regulations, the Human Rights Code or any other enactment or law.

22)     Mr. Watson seeks to reduce the breadth of the fee’s application to exclude moving without furniture, and a reversal, or alternatively a reduction, of the two $100 fees charged.

23)     The strata’s position is that the moving fee is reasonable, as evidenced by its calculation of the costs it incurs and the fees charged by other strata corporations.

 

24)     The strata also questions Mr. Watson’s standing as a tenant to challenge bylaws which were duly enacted by the strata owners. It argues that Mr. Watson chose to live there and signed the Form K and OTIF binding himself to obey the bylaws, and seeks dismissal of Mr. Watson’s claim.

 

ANALYSIS

 

25)     The British Columbia Supreme Court considered the reasonableness of moving fees under s. 6.9(a) of the Regulation in The Owners, Strata Plan LMS 3883 v. De Vuyst, 2011 BCSC 1252 (CanLll). In that case the court held that the correct approach in determining whether fees are reasonable means objectively reasonable, i.e. on an assessment of objective evidence. Whether fees are “reasonable” should depend on:

 

a.      prevailing market conditions at the time; and/or

 

b.      the costs incurred by the strata corporation in facilitating moves in and out of the property.

 

26)     Mr. Watson has not submitted any evidence with respect to prevailing market conditions. I accept that the fee range is between $50 and $200, as set out in the evidence submitted by the strata on the fees charged by other strata corporations. The strata’s fee set out in bylaw 36 is within that range.

 

27)     There is no evidence, however, on whether other strata corporations have expanded the application of the moving fee to include the situation where no furniture is moved. It is the application of the fee in that situation, and where there is only a partial change in occupants, that Mr. Watson takes issue with.

 

28)     On the costs incurred by the strata corporation, the gist of Mr. Watson’s position is that 2/3 of the items do not apply to his situation. I agree that items 2, 3 and 4 (pre and post inspection and move supervision), item 11 (installation of new phone or internet connections) and item 13 (removal of parking stall or locker contents) do not apply.

 

29)     It is not clear from the evidence whether items 5, 6, and 8 (providing copies of bylaws, orientation, and document translation) occurred when Mr. Watson’s roommates moved into his existing tenancy.

 

30)     Although reprogramming the enterphone system (item 12) might apply, it appears from the video submitted that many occupants are just listed as “occupied or “TBA” on the enterphone panel.  Even Mr. Watson’s name is not listed after several years of tenancy.

 

31)     Mr. Watson also takes issue with the strata’s time estimates for each task. He allows 40 minutes for the five tasks he concedes do apply (items 1, 7, 9, 10 and 15). Even using the cost items referred to in in bylaw 4(8) together with the strata’s full time estimate results the total is just over an hour of time spent. And at least two of the items were not undertaken for the moves in issue here. I find, on the balance of probabilities, that one hour is a more reasonable estimate.

 

32)     Mr. Watson claims that bylaw 4(8) contravenes the Regulation because it is not reasonable, and therefore it is unenforceable.  He submits that the strata should rewrite it in a manner that is compatible with the Regulation, to include a provision for a more reasonable fee when no furniture is moved or a single person in a multi-person occupancy moves in or out.

 

33)     Applying the test for whether fees are reasonable as set out in De Vuyst, there is no evidence that other strata corporations have applied the full moving fee to “any person moving out of a strata unit regardless of whether any furniture is moved”. The second element is what actual costs are incurred by the strata corporation when a move in or out occurs. I have found that one hour for a partial change in occupancy with no moving of furniture is a reasonable estimate of the time spent by the building manager. That equates to a cost of approximately $25. I find, therefore, that the $100 moving fee applied in bylaw 4(8) “to any person moving into or out of a strata unit regardless of whether any furniture is moved” is not reasonable.

 

34)     The strata notes the remedial jurisdiction of the court under s. 164(1) of the SPA where owners or tenants are unhappy with their treatment by a strata corporation. On application of an owner or tenant the court may make any order it considers necessary to prevent or remedy a significantly unfair action.

 

35)     The tribunal has similar jurisdiction as set out in s. 48.1 of the Act, which empowers the tribunal to make an order requiring a party to refrain from doing something if the order is necessary to prevent or remedy a significantly unfair action or decision.

 

36)     The strata submits that the unfair action by the strata should be construed as the passing and enforcement of the bylaw. It argues that Mr. Watson was not a resident of the building six years ago when the moving fee was added to the bylaw, that the bylaw was enforced against his roommates and the landlord, and that no action was taken in relation to Mr. Watson. Mr. Watson was a resident, however, in September 2013 when bylaw 4(8) enacted. And although it was his landlord who paid the fees after the fob was disabled, Mr. Watson’s evidence is that he repaid his landlord.

 

37)     I find that the application of the moving fee in bylaw 4(8) was significantly unfair. The amount is excessive in relation to the cost incurred by the strata. There is another significant unfairness issue that Mr. Watson complains of, however, which is the manner in which the moving fee was levied in this case. The strata charged the moving fees in May of 2016, two and half years after Mr. Watson’s former roommate moved out and his current roommate moved in. The strata was aware of the move out at the time. The strata terminated his roommate’s access to the property on May 16, 2016 without any notice to Mr. Watson, his roommate, or the landlord. The fees were paid under duress.

 

38)     Mr. Watson argues that there is no provision allowing the strata to deny access to the building as a means of obtaining payment of a user fee. He also points to the two year limitation period set out in the Limitation Act, SBC 2012, c. 213.

 

39)     The strata says that in seeking relief on the basis of unfairness it is necessary to examine whether the evidence supports the asserted reasonable expectations of the applicant: Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44 (CanLII). It says that Mr. Watson signed both the OTIF and Form K agreeing to the bylaws and therefore should have expected that moving fees would be charged. It is clear from the evidence, however, that the opposite is true. Mr. Watson’s former roommate moved out in November 2013 and no fee was applied until two and half years later. His girlfriend also moved in on April 29, 2016 without the fee being charged.

 

40)     The courts have considered the meaning of “significantly unfair” in a wide number of factual contexts, equating it to oppressive or unfairly prejudicial conduct. In Reid v. Strata Plan LMS 2503, 2003 BCCA 126 the court interpreted a significantly unfair action as one that is burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith and/or unjust or inequitable.

 

41)     I find the imposition of the two moving fees of $100 each when Mr. Watson’s roommates moved in and out was significantly unfair when the actual cost incurred by the strata was approximately $25. While an order reducing the fees to $25 each might have been an adequate remedy I find that the manner in which the strata levied the fee 2 1/2 years after his former roommate moved out and cancelled his current roommate’s fob access to obtain payment was also significantly unfair. The imposition of the former roommate’s fee was also beyond the two year limitation period to commence a court proceeding set out in s. 6(1) of the Limitation Act, SBC 2012, c. 213.

 

DECISION

 

42)     I find on the evidence presented that the $100 moving fee which bylaw 4(8) makes applicable “to any person moving into or out of a strata unit regardless of whether any furniture is moved”, is not reasonable when the actual cost is approximately $25. Bylaw 4(8) therefore contravenes s. 6.9 of the Regulation.

 

43)     I find that the two $100 moving fees charged here were significantly unfair. I also find significantly unfair the strata’s actions in waiting 2 1/2 years to levy the fees, and then without notice denying access to obtain payment.

 

44)     Mr. Watson is entitled to an order that the fees be repaid to his landlord with notice to Mr. Watson so that he can obtain reimbursement.

 

ORDER

 

45)     I order that the Respondent, within 30 days of the date of this decision:

 

a.      repay  Mr.  Watson’s  landlord  the  sum  of  $200.00  together  with  interest pursuant to the Court Order Interest Act, RSBC 1996, c. 79;

 

b.      notify  Mr.  Watson  when  the  payment  is  made  so  that  he  can  request reimbursement from his landlord;

c.      reimburse Mr. Watson for the tribunal fees paid in this claim:

 

•          $125  Application for Dispute Resolution Fee

 

•          $100  Request for Tribunal Decision fee

 

46)     Under section 57 of the Act, a party can enforce this final tribunal decision by filing, in the Supreme Court of British Columbia, a validated copy of the order which is attached to this decision. The order can only be filed if, among other things, the time for an appeal under section 56.5(3) of the Act has expired and leave to appeal has not been sought or consented to. Once filed, a tribunal order has the same force and effect as an order of the Supreme Court of British Columbia.

 

47)     Under section 58 of the Act the Applicant can enforce this final decision by filing in the Provincial Court of British Columbia a validated copy of the order which is attached to this decision. The order can only be filed if, among other things, the time for an appeal under section 56.5(3) of the Act has expired and leave to appeal has not been sought or consented to. Only orders for financial compensation or the return of personal property can be enforced through the Provincial Court and the principal amount or the value of the personal property must be within the Provincial Court’s monetary limit for claims under the Small Claims Act (currently $25,000). Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.