Date Issued: February 27, 2019

File: ST-2018-004690

Type: Strata

Civil Resolution Tribunal

Indexed as: Meloché v. The Owners, Strata Plan BC 478, 2019 BCCRT 230

Between:

Daniel Meloché

Applicant

And:

The Owners, Strata Plan BCS 478

Respondent

REASONS FOR DECISION
Tribunal Member:	Lynn Scrivener

INTRODUCTION

1.      This is a dispute about bylaw enforcement. The applicant, Daniel Meloché, says that the respondent, The Owners, Strata Plan BCS 478 (strata), is not consistently and properly enforcing the bylaws in the context of short-term rentals. The strata disagrees with the applicant’s position.

2.      The applicant is self-represented. The strata is represented by a member of the strata council.

JURISDICTION AND PROCEDURE

3.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims brought under section 121 of the Civil Resolution Tribunal Act (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.

4.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

5.      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.

6.      Under section 123 of the Act and the tribunal rules, in resolving this dispute the tribunal may make order a party to do or stop doing something, order a party to pay money, order any other terms or conditions the tribunal considers appropriate.

ISSUES

7.      The issues in this dispute are:

a.    whether the strata should be ordered to consistently enforce the bylaws regarding the use of a strata lot;

b.    whether the strata should be ordered to schedule a special general meeting (SGM) for the owners to vote on removing 2 members from the strata council;

c.    whether the strata should be ordered to repair the damage to walls and clean the carpets in common areas to address the effects of suitcases associated with short-term rental guests; and

d.    whether the strata should be ordered to post signs regarding the illegality of short-term rentals at the entry doors, in the elevators, and amenity rooms.

BACKGROUND AND EVIDENCE

8.      The strata is located in Vancouver, British Columbia and consists of 105 residential strata lots and 3 commercial strata lots. The applicant purchased residential strata lot 28 in 2012.

9.      Revised bylaws were filed at the Land Title Office in February of 2010. Bylaw 3 addresses the use of property.

10.   According to bylaw 3(1), an owner, tenant, occupant or visitor must not use a strata lot in a way that causes a nuisance or hazard to another person; causes unreasonable noise; unreasonably interferes with the right of other persons to use and enjoy the common property (CP), common assets or another strata lot; is illegal; or is contrary to a purpose for which the strata lot or CP is intended as shown expressly or by necessary implication on or by the strata plan. In 2011, this bylaw was amended to add quiet hours between 11 p.m. and 7 a.m.

11.   In June of 2016, the strata added bylaw 3(6), which sets out a maximum occupancy of 2 persons in a 1-bedroom and 4 persons in a 2-bedroom unit.

12.   In 2018, the strata provided a consolidated version of the bylaws to strata lot owners. This document was prepared following a February 26, 2018 annual general meeting (AGM). Although the amendments implemented at the AGM were filed at the Land Title Office, the consolidated version does not appear to have been filed. The use of property bylaw is referred to as bylaw 7 in this document. I note that the pertinent sections have the same content as the previously filed bylaws.

13.   The evidence suggests that a number of strata lots operate (in whole or in part) as short-term rentals, and that there is no consensus among the owners as to whether such activity should be permitted. While some owners are concerned about security and wear and tear on common assets, other owners focus on property values. Proposed bylaw amendments to prohibit short-term rentals were defeated at a February 2018 AGM.

14.   In response to a previous dispute before the tribunal regarding short-term rentals in the residential strata lots, in June of 2018, the strata issued a letter to all owners and tenants to inform them of the strata’s bylaws and municipal regulations regarding short-term rentals. The letter stated that any unlicenced short-term rental accommodation that did not have a business licence as required by the City of Vancouver would be considered a bylaw violation. The letter reminded owners and tenants that the strata’s rules provide that parking and recreation facilities are for residential use and not for the use of short-term rental accommodation guests.

POSITION OF THE PARTIES

15.   The applicant is opposed to short-term rentals and has made a number of complaints to the strata about strata lots he believes are operating in that capacity. He provided photos of damage to walls and debris on the floor he says resulted from suitcases, photos of individuals he says are short-term guests, and a pin-pad lock that he says is not permissible. According to the applicant, multiple strata lots are in violation of both strata and municipal bylaws.

16.   The applicant says that the strata has ignored multiple complaints, sent contradictory information to owners, and has acted in bad faith. He says that 2 members of the strata council have a conflict of interest as they are among the strata lot owners engaged in short-term rental activities. The applicant asks for an order that the bylaws be enforced consistently and an SGM be ordered to remove the 2 offending members of the strata council. The applicant also seeks orders about the repair of damage he says resulted from short-term guests, and the installation of signage.

17.   The strata says that it is enforcing the bylaws and is acting reasonably and with good faith with respect to short-term rentals, which are not specifically prohibited by the bylaws. The strata says that it is using fines as behaviour modification instrument rather than a revenue source. The strata also says that it is acting reasonably with respect to its repair and maintenance activities, and the installation of signage in the building.

18.    The strata points out that the applicant did not name any strata council members as parties to this dispute. It says that the applicant should use section 43 of the Strata Property Act (SPA) to call for an SGM to address his concerns about council members.

19.   The strata requests that I dismiss the applicant’s claims.

ANALYSIS

Strata Bylaws

20.   Before I can address the strata’s enforcement of the bylaws, it is necessary to determine whether the bylaws prohibit short-term rentals as asserted by the applicant.

21.   The strata’s bylaws do not contain any restrictions on rentals or on business activity in strata lots. The use of property bylaw restricts activity contrary to a purpose for which the strata lot is intended as shown expressly or by necessary implication on or by the strata plan. Although the purpose is not explicitly stated on the strata plan, there is no dispute that the strata lots involved in the short-term rental activity are from the residential section of the strata. 

22.   The SPA says that a “residential strata lot” means a strata lot designed or intended to be used primarily as a residence.

23.   The applicant’s position is that short-term rentals are a business use and are therefore not permitted in the strata. He cited an article in which a lawyer stated that a short-term rental does not amount to a residential purpose. He also cited a number of tribunal and court decisions in support of his position. While I acknowledge these decisions, I find that they may be distinguished from the circumstances of this case.

24.    In The Owners, Strata Plan VR812 v. Yu, 2017 BCCRT 82, a tribunal member determined that the use of a strata lot as an AirBnB rental was not use as a “private dwelling home”. In that case, there was a bylaw in place stating that a resident must not use a strata lot except as a private dwelling home. The strata in the instant case does not have such a bylaw.

25.   In Nanaimo (Regional District) v. Saccomani, 2018 BCSC 752, the court held that residential use did not include use for vacation rentals. This decision was made with specific reference to a municipal bylaw regarding permitted use of a property, which defined “residential use” as “the accommodation and homelife of a person or person in common occupancy”. There is no such bylaw in place with the strata.

26.   The court in Whistler (Resort Municipality) v. Wright, 2003 BCSC 1192, held that the use of a residential-zoned property did not include temporary tourist accommodation. There, a bylaw defined “residential” as meaning a fixed place of living, excluding any temporary accommodation, to which a person intends to return when absent. At paragraph 51, the court stated that, in order for a property to be “residential” it must be a fixed place of living, not a revolving door. However, this comment was made with specific reference to the defined term in the bylaw.

27.   My analysis is guided by the bylaws in place at the respondent strata, and is not impacted by what may be present at other locations. This is not a situation where the strata’s bylaws specifically prohibit rentals, short-term accommodations, or business activity in strata lots, or that specify the only acceptable use of a strata lot is that of a private dwelling unit. The City of Vancouver’s bylaws regarding short-term rentals specifically state that these activities are only permitted in an operator’s principal residence. I find that this requirement meets the definition in the SPA for use “primarily as a residence”.

28.   In the absence of specific bylaws prohibiting rentals, short-term accommodations, or business activities, I find that it is reasonable for the strata to interpret its bylaws as permitting short-term rentals and accommodations, when the municipal requirements have been met.

Bylaw Enforcement

29.   Turning to the issue of enforcement, the applicant provided a detailed record of the complaints he made about various units and the associated action taken by the strata. He is of the view that fines should be imposed in response to each of his complaints and disagrees with the strata’s position that some of his complaints were not supported by sufficient evidence or that the occupants of the impugned strata lot provided an explanation for the activity.

30.   A strata must investigate a complaint and determine whether a bylaw breach has occurred before it determines if bylaw enforcement actions should be taken. The evidence before me establishes that the strata has investigated complaints and, in some cases, directed its property manager to send warning letters and impose fines on strata lot owners, including members of the strata council, and tenants for failing to comply with the requirements around short-term rentals. I acknowledge the applicant’s perspective that every complaint he made should attract a fine. However, I find that the evidence does not support the conclusion that the strata is ignoring complaints, failing to enforce the bylaws, or enforcing bylaws in an inconsistent or unfair manner.

31.   The applicant suggests that some strata lot owners are not in compliance with the City of Vancouver’s bylaws, particularly with respect to the requirement that a short-term rental unit be a principal residence. He provided information from social media about the purported foreign residency and immigration status of strata lot owners and tenants, and suggested that the strata has an obligation to investigate short-term rental operators rather than simply taking their word for the fact that they are in compliance. I do not find that it is up to the strata to investigate possible breaches of municipal bylaws. Even if such information was obtained, it could not necessarily be disclosed to the applicant due to privacy considerations.

32.   I dismiss this aspect of the applicant’s claim.

Removal of Members from Strata Council

33.   The applicant submits that the strata council has not acted in good faith and has not respected the privacy of strata lot owners. He asks for an order that the strata schedule an SGM for the owners to vote on removing 2 members from the strata council.

34.   Section 31 of the SPA requires that, in exercising the powers and performing the duties of a strata corporation, a member of a strata council must act honestly and in good faith with a view to the best interests of the strata. Further, the member must exercise the care, diligence and skill of a reasonably prudent person in comparable circumstances.

35.   While the applicant may not agree with some of the decisions made by the strata council, I do not find that the evidence establishes bad faith or a lack of reasonable care, diligence, or skill. In addition, the applicant did not name the 2 strata members as parties in this dispute.

36.   Even if I had made a finding that any members of the strata council breached their duty of care under section 31 of the SPA, I find the tribunal does not have the jurisdiction to address a remedy (see, for example, Mykle-Hotzon v. The Owners, Strata Plan LMS 1372 et al, 2018 BCCRT 609 at paras. 37 – 38).

37.   Nothing in my decision prevents the applicant, or any other owner, from petitioning an SGM on this matter under section 43 of the SPA.

 

Repairs and Cleaning

38.   As noted above, the applicant provided photographs showing debris and damage that he says came from short-term guests. He suggests that these guests bump the walls with their suitcases and bring debris in from the street on their suitcase wheels.

39.   I am not satisfied that the applicant has established the cause of the debris or damage demonstrated in the photographs. Although I will not make the order requested by the applicant, this does not affect the strata’s responsibility to repair and maintain CP.

Signage

40.   The applicant requests that the strata be ordered to install signage around the building as a tool to communicate the contents of the bylaws to owners, renters and short-term guests.

41.   As I have determined that the strata’s bylaws permit short-term accommodations, I dismiss this aspect of the applicant’s claims.

TRIBUNAL FEES AND EXPENSES

42.   Under section 49 of the Act, and the tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. The respondent did not make a claim for fees or expenses. As the applicant was not successful, I dismiss his claim for reimbursement of fees or expenses.

43.   The applicant also requested the reimbursement of legal fees. Rule 131 provides that, except in extraordinary cases, the tribunal will not order one party to pay another party any fees charged by a lawyer or another representative in the tribunal dispute process. Although it was open to the applicant to choose to consult with counsel, I do not find that the circumstances of this case are extraordinary such that an order for reimbursement would be appropriate, and will not make an order in this regard.

44.   The strata corporation must comply with the provisions in section 189.4 of the SPA, such as not charging dispute-related expenses against the owner.

DECISION AND ORDERS

45.   I dismiss the applicant’s claims and this dispute.