Date Issued: May 6, 2019

File: ST-2018-007527

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan BCS 1559 v. Robert et al, 2019 BCCRT 533

Between:

The Owners, Strata Plan BCS 1559

Applicant

And:

Michel Robert and Liliana Robert

Respondents

REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      The respondents are the owners of strata lot 3 in the applicant strata corporation, The Owners, Strata Plan BCS 1559 (strata). The strata claims $1,175 from the respondents for $800 in unpaid fines and $375 in move-in charges. The respondents dispute the charges.

2.      The strata is represented by a member of strata council. The respondents are self-represented.

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. In some respects, this dispute amounts to a “he said, she said” scenario with both sides calling into question the credibility of the other. Credibility of witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note the decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. I therefore decided to hear this dispute through written submissions.

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.      The applicable tribunal rules are those that were in place at the time this dispute was commenced.

7.      Under section 123 of the Act and the tribunal rules, in resolving this dispute the tribunal may 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

8.      The issues in this dispute are:

a.    Did the respondents breach the strata’s bylaws by renting their strata lot for periods of less than 1 month?

b.    Did the respondents breach the strata’s bylaws by failing to replace their smoke alarms?

c.    Are the move-in fees charged by the strata reasonable?

BACKGROUND AND EVIDENCE

9.      In a civil claim such as this, the strata must prove its case on a balance of probabilities. While I have read all of the parties’ evidence and submissions, I only refer to what is necessary to explain and give context to my decision.

10.   The strata consists of 251 residential strata lots in Vancouver. Most of the strata lots are in a high-rise tower, but the respondents’ strata lot is 1 of 9 townhouses that can be accessed directly from the outdoors rather than through the main strata building. There is also a small portion of the strata lots on the lower floors that have a dedicated elevator, known as “Harmony House”. The majority of the strata lots share an elevator in the strata’s main tower.

11.   The strata filed a complete set of bylaws in the Land Title Office on June 18, 2007, which replaced all existing bylaws. The strata has filed numerous amendments since then. The bylaws applicable to this dispute are:

a.    Division 1 Bylaw 3(1)(j): An owner must not do anything that will increase the risk of fire or the rate of insurance on the building (fire risk bylaw).

b.    Division 4 Bylaw 1(1)(a): The maximum fine for contravening a bylaw is $200.

c.    Division 7 Bylaw 7(2): A move-in fee of $250 must be paid by residents on a change of occupancy, unless the strata lot is fully furnished, in which case the move-in fee is $125, but there is no move-in fee for residents of Harmony House (move-in fee bylaw).

d.    Division 7 Bylaw 17(1): An owner must not permit a strata lot to be used contrary to any law, regulation or municipal bylaw, including producing or trafficking controlled substances (illegal use bylaw).

e.    Division 7 Bylaw 17(4): The strata may fine an owner up to $200 if a strata lot is used in a manner prohibited by the illegal use bylaw.

12.   On May 1, 2017, the strata’s property manager wrote to the respondents alleging that the respondents were using their strata lot for short-term rentals. The strata said that this was contrary to the illegal use bylaw because it breached the City of Vancouver’s Zoning and Development Bylaw 3575 10.21.6 (zoning bylaw), which prohibited renting the strata lot for less than 1 month. The strata gave the respondents the opportunity to respond within 21 days, including by requesting a hearing.

13.  On June 16, 2017, the property manager wrote to the respondents to advise that because they had not responded in the allotted time, the strata had imposed a $200 fine.

14.   On July 28, 2017, the respondents wrote to the property manager about the fine. The respondents called the allegation that they were renting out short-term as “false accusations or innuendos”. The respondents said that they were allowed to rent monthly.

15.   On August 2, 2017 and September 5, 2017, the property manager wrote to the respondents about 2 further short-term rentals of their strata lot. Again, the respondents were given the opportunity to respond, including by requesting a hearing. There is no evidence that they did so.

16.   On November 1, 2017, the property manager informed the respondents that the strata council had imposed 2 further $200 fines for the breaches outlined in the August 2 and September 5 letters.

17.   In December 2017, the strata hired a fire safety contractor to conduct an inspection. The contractor reported that several strata lots had smoke alarms more than 10 years old and past the manufacturer’s service life, including the respondents’ strata lot. The property manager wrote to the respondents on February 16, 2018, to request that they replace the smoke alarms within 30 days. The property manager advised that failing to meet the deadline could result in fines for breaching the fire risk bylaw.

18.   The property manager followed up on May 2, 2018, demanding that the respondents provide proof that they had installed new smoke alarms within 21 days or face a fine.

19.   In this dispute, the respondents provided a photograph that they say shows the new smoke alarm. The respondents say they provided this photograph to the strata as proof that they had replaced the smoke alarms. The photograph is dated May 19, 2018.

20.   On July 4, 2018, the property manager notified the respondents that the strata had imposed a $200 fine for breaching the fire risk bylaw.

21.   The respondents provided Form Ks for new tenants on May 8, 2018, June 18, 2018, and July 3, 2018. The respondents’ lot is fully furnished, so the strata charged the lower move-in fee of $125 for each move-in. The respondents have not paid the $125 move-in fee for any of these new tenants.

POSITIONS OF THE PARTIES AND ANALYSIS

Did the respondents breach the illegal use bylaw?

22.   The strata says that the respondents started renting their strata lot as a short-term rental in 2011. The strata says that the respondents breached the zoning bylaw by renting out their strata lot for periods of less than 1 month. The strata says that the respondents therefore contravened the illegal use bylaw, which explicitly refers to municipal bylaws, by breaching the zoning bylaw.

23.   In support of its allegation that the respondents operated a short-term rental, the strata provided printouts of the respondents’ profiles on Airbnb and TripAdvisor. The printouts include many reviews from people who have stayed at the respondents’ strata lot. The strata relies on the fact that in some months there are multiple reviews, which suggests stays of less than a month. In addition, there are 2 reviews that explicitly refer to short stays, one for a week and another for 10 days. The strata also says it has received multiple complaints from neighbours, although it does not provide any details of the complaints received.

24.   The strata says that the respondents have consistently refused to provide evidence from their Airbnb or TripAdvisor accounts to prove that there are no short-term rentals taking place. The strata asks that I either order the respondents to produce those records or make an adverse inference against the respondents for refusing to do so.

25.   The respondents say that they have not had short-term rentals since the City passed a bylaw prohibiting them. However, the respondents’ statement is not clear since the zoning bylaw prohibiting short-term rentals was in effect at the times relevant to this dispute.

26.   In addition, they do not specifically deny that they had short-term renters at the times the strata imposed the fines. They allege that the fact that there are multiple reviews on their Airbnb and TripAdvisor sites in the same month does not “necessarily” mean that there were multiple guests that month because more than one guest from a single stay can leave a review.

27.   They do also not say that the reviews are, in fact, from multiple guests from a group who rented their strata lot for more than a month. They simply point to the possibility. I agree with the strata that the respondents’ failure to provide evidence of its guest history through Airbnb and TripAdvisor is suspicious. I find that the respondents could have easily obtained this evidence and that their refusal to do so negatively impacts their credibility. The respondents have also not addressed the 2 reviews that the strata points to that explicitly refer to stays of less than a month.

28.   I also find that it is unlikely that the respondents would use services like Airbnb and TripAdvisor to find tenants to rent their strata lot for at least a month. I find that sites such as Airbnb and TripAdvisor are intended to assist people to find temporary and transient accommodation.

29.   In addition, I agree with the strata that it can be difficult for the strata to get direct proof that an owner is renting out their strata lot as a short-term rental. I agree that in the circumstances of this dispute, the evidence from Airbnb and TripAdvisor is adequate and reasonable proof that the respondents rented out their strata lot short-term at the times the strata imposed the fines.

30.   The respondents also argue that the illegal use bylaw refers to controlled substances. However, there is no suggestion that the strata fined the respondents because of controlled substances. The only allegation is that the respondents breached the zoning bylaw.

31.   Finally, the respondents say that the strata does not have a bylaw that specifically prohibits short-term rentals. This is true but it does not address the strata’s argument that the respondent breached the illegal use bylaw.

32.   In summary, I agree with the strata. I have drawn an adverse inference against the respondents because they had the opportunity to prove their position with but chose not to provide relevant evidence. I find that the strata has proven that the respondents breached the illegal use bylaw on the 3 occasions it decided to impose the fines.

33.   I order that the respondents pay the strata the $600 in fines as claimed.

Did the respondents breach the strata’s bylaw by failing to replace their smoke alarms?

34.   The strata says that the fire safety inspection revealed that 2 smoke alarms in the respondents’ strata lot needed to be replaced. The strata says that failing to keep the smoke alarms up to date could impact their insurance premiums. The strata also says that the respondents’ failure to replace the 2 smoke alarms increases the risk of fire.

35.   The respondents say that they replaced the smoke alarms within 48 hours of being notified and sent the property manager proof. They say that the strata council president acknowledged that they did so. In this dispute, the only evidence that they provide is the photograph of a smoke alarm.

36.   However, the respondents do not provide any objective evidence that they sent any proof to the property manager or strata council, such as a copy of an email or letter. In addition, the date of the photograph of the smoke alarm is May 19, 2018, more than 3 months after the property manager’s first letter about the smoke alarm, despite their allegation that they provided it 48 hours after receiving the notice.

37.   The strata provided evidence of the letters it sent to the respondents about this issue and there is no evidence of any communication from the respondents. This contrasts with the correspondence that the strata provided about the short-term rentals, which included an email from the respondents disputing the fines for breaching the illegal use bylaw. This suggests that the strata has provided a complete record of the parties’ correspondence. I also have concerns about the respondents’ credibility, for the reasons discussed above. I therefore accept the strata’s evidence that the respondents did not respond to their letters about the smoke alarms as alleged.

38.   As for the basis for the fine, the strata has not provided any evidence that the respondent’s delay or failure to install new smoke alarms had an impact on their insurance premiums. That said, I accept that failing or delaying the replacement of smoke alarms that are past their service life increases the risk of fire in the strata.

39.   I therefore find that the respondents breached the fire risk bylaw. I order that the respondents pay the $200 fine as claimed.

Are the move-in fees reasonable that the strata charged reasonable?

40.   Section 110 of the SPA prohibits user fees for the use of common property unless there is an exception in the Strata Property Regulations (Regulations). Section 6.9(1) of the Regulations allows user fees for the use of common property as long as the amount of the fee is reasonable and the fee is set out in a bylaw or rule. As mentioned above, the strata has a move-in fee bylaw, which I find is a user fee within the meaning of section 110 of the SPA.

41.   The strata says that its move-in fees are reasonable. The strata says that it charges a lower amount when a new resident is moving into a fully furnished strata lot because there is less wear and tear or disruption. The strata says that it still charges a move-in fee for these moves because it incurs expenses whenever there is a change in occupancy.

42.   The respondents say that the move-in fee, which the strata calls an “occupancy fee”, is unreasonable because their strata lot is fully furnished and accessed directly from the outdoors. In other words, there is no wear and tear on common property or disruption because people are simply moving suitcases into the strata lot from the street.

43.   According to the strata plan, the only common property that residents moving into the respondents’ strata lot would use is the respondents’ limited common property patio and steps that connect the strata lot to a public sidewalk. It appears possible that a resident could enter the building’s lobby, take the elevator or stairs up to the second floor and access the townhouse’s second floor patio from a walkway. However, I find that it is unlikely that a person would take such a roundabout route when they could simply access the strata lot from the sidewalk.

44.   The respondents rely on The Owners, Strata Plan BCS 1721 v. Watson, 2018 BCSC 164, which was a BC Supreme Court case that upheld a tribunal decision, Cody Watson v. The Owners, Strata Plan BCS 1721, 2017 BCCRT 10. In Watson, a strata corporation charged a user fee of $100 for every move-in regardless of whether the resident moved any furniture. The tribunal found that the user fee was unreasonable for residents without furniture and reduced it to $25 based on detailed evidence provided by the parties about the actual costs incurred by the strata corporation.

45.   The test for whether a user fee is reasonable is found in The Owners, Strata Plan LMS 3883 v. De Vuyst, 2011 BCSC 1252. The Court found that whether a user fee is reasonable is objective, depending on the prevailing market conditions at the time and the actual costs incurred by the strata corporation in facilitating moves.

46.   In this dispute, neither party provided any evidence about the prevailing market conditions.

47.   As for the actual costs incurred by the strata, it relies on a general statement that there are “administrative expenses” from the strata receiving a Form K every time there is a change in tenancy. The strata provided no evidence that its property manager charges a separate fee for this task. The strata points to no other costs. I find that the strata has not proven that it incurs any actual costs for these moves.

48.   I rely primarily on the fact that the Harmony House residents pay no move-in fee at all, regardless of whether they have furniture. These residents use the main building lobby but have their own elevator. Therefore, the strata’s assertion that it is reasonable to charge the respondents a move-in fee for administrative tasks is inconsistent with allowing the Harmony House residents to move in for free. I therefore find that it is not objectively reasonable to charge the respondents a move-in fee.

49.   I order the strata to cancel the $375 in move-in fees that it charged against the respondents’ strata lot account.

TRIBUNAL FEES AND EXPENSES

50.   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. I find that the strata was partially successful in this dispute. I therefore order the respondents to reimburse the strata for half of its tribunal fees of $225 for a total of $112.50. I dismiss the respondents’ claim for tribunal fees. None of the parties claimed for any other dispute-related expenses.

51.   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

52.   I order that:

a.    The strata immediately cancel $375 in move-in charges on the respondents’ strata account for changes in occupancy that occurred on May 8, 2018, June 18, 2018, and July 3, 2018.

b.    Within 14 days of the date of this order, the respondents pay the strata a total of $912.50, broken down as follows:

                              i.        $600 in fines for breaching the illegal use bylaw,

                            ii.        $200 in fines for breaching the fire risk bylaw, and

                           iii.        $112.50 in tribunal fees.

53.   The strata is also entitled to post judgement interest under the Court Order Interest Act, as applicable.

54.   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.

55.   Orders for financial compensation or the return of personal property can also be enforced through the Provincial Court of British Columbia. However, the principal amount or the value of the personal property must be within the Provincial Court of British Columbia’s monetary limit for claims under the Small Claims Act (currently $35,000). 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. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.