Date Issued: January 10, 2020

File: ST-2019-006234

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan VR 52 v. Weng, 2020 BCCRT 37

Between:

The Owners, Strata Plan VR 52

Applicant

And:

LEI ELAINE WENG

Respondent

INTRODUCTION

1.      This dispute is about unpaid bylaw contravention fines.

2.      The respondent, Lei Elaine Weng, owed a strata lot (SL21) in the applicant strata corporation, The Owners, Strata Plan VR 52 (strata). The strata commenced the dispute in August 2019 prior to the respondent selling her strata lot. In the Dispute Notice, the strata asked for an order that the respondent “stop violating the Rental Restriction Bylaws and pay all outstanding fines”, which it valued at $8,000.00. The respondent sold SL21 on October 3, 2019 and the seller held back $8,000.00 for unpaid fines and $1,000.00 for anticipated costs. These $9,000.00 in funds were sent to the strata, who is holding them in trust until this dispute is complete.

3.      The strata is claiming $8,000.00 for the fines plus another $530.62 in fees and expenses. Though it does not state in it this way, I infer the strata is now seeking an order that $8,530.62 of the trust funds be released to it.

4.      The respondent denies that she is responsible for the fines. The respondent says she just let people stay in her strata lot as a favour. The respondent also says the strata gave her insufficient information about the rental restrictions to allow her to understand them.

5.      The strata is represented by a strata council member. The respondent is self-represented.

6.      I allow the strata’s claim for the reasons that follow.

JURISDICTION AND PROCEDURE

7.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims under section 121 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. The tribunal must act fairly and follow the law. It must also recognize any relationships between dispute parties that will likely continue after the tribunal’s process has ended.

8.      The tribunal has discretion to decide the format of the hearing, including in writing, by telephone, videoconferencing, or a combination of these. I am satisfied an oral hearing is not required as I can fairly decide the dispute based on the evidence and submissions provided.

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

10.   Under section 123 of the CRTA 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, or order any other terms or conditions the tribunal considers appropriate.

ISSUES

11.   The issues in this dispute are:

a.    Did the respondent rent her strata lot between May and August 2019 contrary to the strata’s rental restriction bylaws?

b.    Did the strata provide the respondent with sufficient notice under section 135 of the Strata Property Act (SPA) before imposing the fines?

c.    What amount if any, does the respondent owe the strata in bylaw fines and related costs?

EVIDENCE AND ANALYSIS

12.   In a civil claim such as this, the applicant strata bears the burden of proving its claims on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

13.   The strata is a 3-floor building with 21 strata lots. It was registered in the Land Title Office (LTO) on August 24, 1972 under the Condominium Act and continues to exist under the SPA.

14.   I find the relevant strata bylaws are those amended bylaws filed at the LTO on March 2006 as BA480333. Bylaw 43(1) says that strata lots shall be owner-occupied. With some exceptions, it says only 4 residential strata lots may be leased or rented at a time. As required under section 141(3) of the SPA, bylaw 43(1)(c) sets out the procedures the strata must follow in administering the 4 strata lot limit. Consistent with sections 142 and 144 of the SPA, bylaw 43(1) provides for hardship and family exceptions.

15.   Bylaw 43(1)(f) says that the strata is entitled to impose a fine of up to $500 for a contravention of this rental restriction bylaw and may impose such fine for a continuing contravention every 7 days. Further, it states that the contravening owner shall be responsible for the strata’s legal costs incurred in enforcing the rental restriction bylaws on a solicitor and own client basis. (I have paraphrased.)

Did the respondent rent her strata lot between May and August 2019 contrary to the strata’s rental restriction bylaws?

16.   According to the LTO documents in evidence, the respondent bought SL21 in about June 2017. The LTO documents show the respondent bought a different property the following year. The strata says the respondent stopped living in SL21 and was living in her 2^nd residence. The respondent seems to agree but says she still lived in SL21 “from time to time”.

17.   The respondent rented SL21 with permission until December 2018, when her tenant moved out. Following bylaw 43(1)(c), once the tenancy ended the respondent was required to reapply to rent SL21. The respondent applied and was put on the strata’s rental waitlist. The strata says that while still on the waitlist, the respondent allowed people to live in SL21 without council permission contrary to its bylaws.

18.   The respondent admits she allowed people to stay in SL21 as a “favour” but says she did not “rent” the strata lot. The respondent provided a text message from her friend HZ, who she says she let stay on occasion with HZ’s sister, in the respondent’s empty strata lot as a “favour” and there was no “rent lease involved”. My reading of the text message is that it was actually HZ’s sister who was living in SL21 because HZ had her own place. I have no evidence from the sister.

19.   The respondent does not state the exact dates she allowed people to stay or live in SL21. However, the respondent also does not specifically dispute the strata’s position that someone lived in SL21 other than herself from April 6, 2019 until the end of July 2019. I accept April 6, 2019 until the end of July 2019 was the time period of the ‘tenancy’. It is supported by the strata’s witness statements from multiple owners who either saw or spoke to a woman who moved into SL21 in early April and who described signs that she lived there from April 6, 2019 to August 2019.

20.   I infer the respondent was not living in SL21 during those months because the respondent describes the strata lot as otherwise empty and does not say that she was living there. Whether or not the friends paid rent, I find bylaw 43(1) required the respondent to obtain permission to allow her strata lot to be occupied by someone other than herself (the owner). Again, bylaw 43(1) says that strata lots shall be owner-occupied except where strata grants permission to rent or lease the strata lot or where an exemption applies. The strata granted no permission to rent and there is no evidence an exemption applied. I find the respondent breached bylaw 43(1) from April 6, 2019 to July 31, 2019 by allowing another person to occupy the SL21.

Did the strata provide the respondent with sufficient notice under section 135 of the SPA before imposing the fines?

21.   The strata fined the respondent a total of $8,000 for contravening bylaw 43(1) as it is empowered to do under bylaw 43(1)(f).

22.   The respondent says it is “unfair for Council to enforce the fine without letting me know clearly why I've been fined”. She says she was given no details of the rental restriction when she purchased her strata lot and that it is incorrect for the strata to only now let her know about it. The respondent’s argument is essentially that the strata failed to comply with section 135.

23.   The Court of Appeal has found that strict compliance with section 135 is required before a strata corporation can impose fines (Terry v. The Owners Strata Plan NW 309, 2016 BCCA 449). If a strata does not strictly comply with section 135, the fines cannot stand.

24.   The strata rental restriction bylaws were filed at the LTO prior to the respondent purchasing her strata lot and are available from the LTO. I find that the respondent must have had some knowledge of the bylaws because she had rented her strata lot until the tenancy ended in December 2018 following the rental procedures under bylaw 43(1)(c). I do not accept that the respondent was either unaware or unable to properly inform herself of the bylaws or consequences for breaching them.

25.   At any rate, I find on the letters in evidence that the strata provided proper notice and strictly followed the provisions of section 135 before imposing the fines. The strata’s April 16, 2019 letter to the respondent gave the details of the bylaw contravention complaint, the excerpt of bylaw 43(1), the opportunity to respond, and the consequences for failing to comply under bylaw 43(1)(f). It is undisputed that the respondent never responded to this letter.

26.   On May 1, 2019, the strata sent council’s decision in writing that it decided to impose the $500.00 fine as of April 17, 2019 with a second fine on April 24, 2019 for the continuing contravention. The strata sent the respondent further letters June 3, 2019, July 3, 2019 and August 7, 2019 imposing continuing 7-day fines of $500.00 for failure to comply and explaining in each letter, the continuing bylaw contravention and consequences of non-compliance.

27.   The respondent says that the strata should have filed a tribunal application earlier to stop her “alleged activity” rather than let the fines accumulate until she found out about them when she sold the unit. However, I find that it more likely than not the respondent received the letters described above. The letters state they were sent to the respondent by mail at the address on record or delivered by hand to SL61 or both. Also, there are Canada Post delivery receipts in evidence with the respondent’s signatures accepting two of the letters. I place significant weight on this evidence and conclude that it establishes that the respondent was likely aware of the ongoing fines.

28.   I find the strata provided proper notice and strictly complied with section 135 of the SPA.

What amount if any, does the respondent owe the strata in bylaw fines and associated costs?

29.   In addition to the fine letters, the strata sent the respondent a written demand on August 7, 2018 for payment of the full $8,000.00 within 14 days of the date of the letter. The respondent does not specifically dispute that the accumulated fines totaled $8,000.00. I find, on review of the fine letters in evidence, that $8,000.00 was the total outstanding fines.

30.   The respondent seems to suggest that she improperly paid double move-in fees when she sold her strata lot. I infer she is asking for a set-off from the money held in trust. However, the burden is on the respondent to show a set-off and I find the evidence does not substantiate that she paid the strata extra money for the buyer’s move-in fees. I find on the emails in evidence and the lawyer’s hold back letter that it was the buyer who paid the move-in fees to the strata and not the respondent seller.

31.   I allow the strata’s claim for $8,000.00 in unpaid bylaw fines.

32.   The strata also claims $260.41 for legal costs incurred in 2019 when enforcing the rental restriction bylaws. I find the strata adequately notified the respondent in the letters described above that she would be responsible to pay legal costs under bylaw 43(1)(f) for enforcing bylaw rental restrictions. Based on bylaw 43(1)(f), I allow the $260.41 in legal costs as set out in its lawyer’s invoice.

33.   Under section 49 of the CRTA, 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 see no reason in this case not to follow that general rule. I find the strata is entitled to the $225.00 it paid in tribunal fees and $45.21 for registered mail, which I find were reasonably incurred.

34.   As mentioned, the strata is holding $9,000.00 of the respondent’s funds in trust. I find that the strata is entitled to release $8,530.62 of the funds to itself. I find the strata must return any remaining funds, which I calculate as $469.38 back to the respondent.

35.   The strata did not request an order for any pre-judgment interest under the Court Order Interest Act in its Dispute Notice nor provide submissions on interest. Since the strata collected the funds and is holding them in trust, I make no order for pre-judgment interest on the $8,530.62. Because the strata is releasing the funds to itself, I also make no order for post-judgment interest.

ORDERS

36.   I order that:

a.    The strata may now release to itself the $8,530.62 from the trust in which the funds were held.

b.    Within 30 days of this order, the strata must return the remaining $469.38 to the respondent.

37.   Under section 57 of the CRTA, a party can enforce this final tribunal decision by filing a validated copy of the attached order in the Supreme Court of British Columbia (BCSC). Once filed, a tribunal order has the same force and effect as a BCSC order.

38.   Orders for financial compensation or the return of personal property can also be enforced through the Provincial Court of British Columbia (BCPC). However, the principal amount or the value of the personal property must be within the BCPC’s monetary limit for claims under the Small Claims Act (currently $35,000). Under section 58 of the CRTA, a party can enforce this final decision by filing a validated copy of the attached order in the BCPC. Once filed, a tribunal order has the same force and effect as a BCPC order.