Date Issued: January 15, 2020

File: ST-2019-003115

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan LMS 2174 v. Angara Properties Ltd., 2020 BCCRT 54

Between:

The Owners, Strata Plan LMS 2174

 

Applicant

And:

ANGARA PROPERTIES LTD.

 

Respondent

REASONS FOR DECISION
Tribunal Member:	David Jiang

 

INTRODUCTION

1.      This dispute is about short-term occupancy bylaws. The applicant, The Owners, Strata Plan LMS 2174 (strata), is a strata corporation. The respondent, Angara Properties Ltd. (owner), owns strata lot 44 in the strata. Strata lot 44 is also known as unit 510.

2.      The strata says the owner breached strata bylaws that prohibit short-term accommodations, including licensing arrangements under Airbnb. The strata claims $2,400.00 in fines. This amount consists of 12 fines of $200.00 each. The strata also claim $1,020.00 in move fees and security move fees. I will discuss the difference in fees below.

3.      The owner disagrees that it should pay any claimed amounts. It says it never licensed unit 510 out as a short-term accommodation. It also says the strata did not comply with section 135(1) of the Strata Property Act (SPA) in levying the fines. The owner also says the move fees are unreasonable.

4.      A strata council member represents the strata. Dimitry Malyarenko represents the owner. I infer he is the owner’s employee or principal.

JURISDICTION AND PROCEDURE

5.      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.

6.      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.

7.      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 questions of the parties and witnesses and inform itself in any other way it considers appropriate.

8.      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

9.      The issues in this dispute are as follows:

a.    Did the owner or tenant contravene a bylaw?

b.    Must the owner pay $2,400.00 in bylaw violation fines?

c.    Must the owner pay $1,020.00 in move fees and security move fees?

BACKGROUND AND EVIDENCE

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

Issue #1. Did the owner or tenant contravene a bylaw?

11.   The owner is the registered owner of unit 510. On April 14, 2015, the owner emailed the strata for permission to renovate unit 510. The strata approved the renovation request in an April 30, 2015 letter.

12.   On August 29, 2018, a strata council member saw an Airbnb ad online. The strata provided a copy of the ad as evidence. The ad did not state an address. However, it said the short-term accommodation unit was a studio apartment in Yaletown. The ad included interior photos. The ad said to contact “Christine” to arrange accommodations.

13.   The ad shows 10 reviews. Of these, 4 are dated July 2018, and 6 are dated August 2018.

14.   The strata says that the Airbnb ad is for unit 510 for several reasons:

a.    The strata says the photos show a unit layout and window view that match unit 510.

b.    On August 30, 2018, the strata council member contacted the Christine. Christine advised that the unit was located on the 5^th floor. The strata points out that the ad is for a studio apartment. Unit 510 is one of only 3 studio apartments on the 5^th floor. The strata did not provide any messages from Christine.

c.    In a September 13, 2019 email, the strata’s building manager wrote she spoke to two strangers on September 1, 2018. They told her they had arrived 2 days ago and were renting unit 510 through Airbnb. They asked the building manager to fix their unit’s showerhead.

d.    The strata says it was provided a photograph of a gym that matches the strata’s gym before it was renovated. This photograph is not on the ad or otherwise in evidence.

15.   The owner disagrees the ad shows unit 510. It says it rented out unit 510 from April to the end of June 2018 to two tenants named AK and SS. It says it then rented unit 510 to another tenant, YS, from July 15, 2018 to August 31, 2019.

16.   The owner provided 2 signed residential tenancy agreements dated March 19 and July 4, 2018. The tenancy agreements support the owner’s submissions.

17.   On balance, I find that the Airbnb ad is for unit 510. I place significant weight on the strata building manager’s evidence. It provides a clear link between the ad and unit 510, close in time to when the ad was available.

18.   Although unnecessary for my above finding, I also draw an adverse inference against the owner. Tribunal’s rule 8.1(1) requires a party to produce all evidence in their possession that may prove or disprove an issue in the dispute, even if the evidence does not support the party’s position. The owner did not provide a photo of unit 510 that could be compared to the Airbnb ad. This would have been key evidence. It is unclear why the owner did not provide such a photo.

19.   The strata says the owner breached bylaw 43.5. At the time, bylaw 43.5 said that no owner or tenant could permit a strata lot to be used for a short-term tenancy agreement, contract, or license arrangement. Bylaw 43.5 also specifically prohibited licensing arranged through Airbnb.

20.   Bylaw 43.5 was subsequently amended in January 2019, but nothing turns on this as the bylaw was simply renumbered.

21.   I find that bylaw 43.5 was breached by an owner or tenant, given the Airbnb ad and the strata manger’s evidence. So, who breached the bylaw? The owner says that the tenant YS is likely to blame as YS began his tenancy in July 2018. The Airbnb reviews are dated July and August 2018, as noted above.

22.   On balance, I find it likely that YS, and not the owner, breached bylaw 43.5. The Airbnb reviews started shortly after YS began his tenancy. I infer that YS offered unit 510 through Airbnb. I also conclude from the tenancy agreements that the owner intended to rent his unit to tenants on a long-term basis.

23.   How many breaches occurred? The strata claims for 12 breaches, but the 2 additional reviews are not in evidence. I conclude that the tenant breached bylaw 43.5 10 times. This is supported by the 10 reviews shown in the Airbnb ad.

24.   I will now consider whether the owner must pay the claimed fines.

Issue #2. Must the owner pay $2,400.00 in bylaw violation fines?

25.   On September 13, 2018, the strata wrote to the owner and to the occupant of unit 510 that they had breached bylaw 43. The strata sent 12 copies of the letters to unit 510 and 12 copies to the owner at a Vancouver address. The letters are largely identical, though the named recipients differ.

26.   The strata referred to the Airbnb ad and the 12 reviews. The strata said the recipients had 14 days to respond to the complaint in writing or request a hearing. The strata warned that the recipients could be fined $200.00 for each bylaw infraction.

27.   The strata received no response. In letters dated November 19, 2018 letter, the strata referred to its September 13, 2018 letters. The strata wrote to the owner and unit 510 occupant that it had decided to levy a $200.00 fine against each person. The strata warned that the recipients had 4 weeks to pay the fines or further action would be taken. The strata sent 12 copies of the letters to unit 510 and 12 copies to the owner at the Vancouver address.

28.   SPA section 130 says that the strata may fine a tenant if the tenant breaches a bylaw. SPA section 131 says that if the strata fines a tenant, the strata may collect from the tenant or the tenant’s landlord or strata lot owner. In other words, the strata can collect fines against the tenant from the owner.

29.   SPA section 135(1) says a strata cannot impose a fine against a person for a bylaw contravention unless it has

a.    received a complaint about the contravention,

b.    given the owner or tenant the particulars of the complaint in writing, and

c.    given the owner or tenant a reasonable opportunity to respond to the complaint (including a hearing if requested).

d.    if the person is a tenant, given notice of the complaint to the landlord and to the owner.

30.   SPA section 135(2) says the strata must give notice in writing of its decision to impose a fine to the owner or tenant as soon as feasible.

31.   SPA section 135(3) says that once the strata has complied with the procedural steps outlined above, the strata may impose fines or penalties for a continuing contravention without further compliance of those steps.

32.   The strata must follow the requirements of section 135 before fines can be imposed: Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449. However, if the strata fails to comply with SPA section 135, the strata can rectify or cure its noncompliance prior to imposing such fines: Cheung v. Strata Plan VR 1902, 2004 BCSC 1750.

33.   SPA section 61 sets out how a strata must give notice. Section 61(1)(a) says that if the owner provides the strata with an address outside the strata plan for receiving notices and other records or documents, the strata has only 2 options for delivery. The strata may leave it with the owner or mail it to the address provided.

34.   I find that the strata failed to comply with SPA section 135(1) in dealing with the owner. On July 17, 2018, the owner emailed the strata a Form K as he had a new tenant at unit 510. The Form K is dated July 4, 2018. The form asks the owner to provide an address “to which any notice to the registered owner of the strata lot shall be delivered”. The owner provided an address in Coquitlam, BC, and his phone number.

35.   I find that, under SPA section 61, the strata was obligated to send the owner notices to the Coquitlam, BC address. The strata had to use this address after receiving the owner’s Form K in July 2018. The strata failed to do so. Instead, it sent the September 2018 letters to the owner’s former Vancouver, BC address. The strata then decided to fine the owner in November 2018. Under SPA section 135(1), the fine was premature because the owner did not have proper notice.

36.   The owner advised of his address change using the Form K. There is no bylaw or rule in evidence that says the owner used the wrong method to advise the strata of its address change.

37.   The April 2015 email correspondence (about renovations) also shows the strata knew the owner’s email address. The strata did not send the September or November 2018 letters to any email address.

38.   I now consider the authority of Cheung. Did the strata rectify or cure its noncompliance prior to imposing fines? I find that the strata did not.

39.   I base my finding on the following subsequent events:

a.    In a February 25, 2019 email the strata advised the owner his account was in arrears for $3,420.00. The strata wrote the amount related to fines and unpaid move fees.

b.    I infer that on April 2, 2019, the strata sent the owner copies of the September 13 and November 19, 2018 letters. There is some ambiguity in the correspondence on this point. However, the owner thanked the strata for sending the documents on April 18, 2019.

c.    On April 18, 2019, the owner emailed the strata to say that the September 13 and November 19, 2018 letters were sent to an old address.

d.    On April 20, 2019, the strata applied for dispute resolution with the tribunal.

e.    The strata sent a May 3, 2019 letter to the owner’s Coquitlam, BC address and his email. The letter demanded payment for the arrears owing from bylaw fines and move fees. The strata demanded payment within 21 days, otherwise it would start a proceeding at the tribunal.

f.     On May 7, 2019, the owner emailed the strata to ask that it cancel the fines and fees. The owner explained that the strata sent the required notices under the SPA to the wrong address.

g.    On July 4, 2019, the strata emailed the owner to ask if he wanted to respond in writing or at a hearing. The strata asked for a reply within 14 days.

h.    On July 19, 2019, the owner emailed the strata to clarify what “in writing” meant. The owner did not expressly say if he would respond in writing or at a hearing.

i.      On or around July 24, 2019, the owner received the Dispute Notice. The owner emailed that day to ask if this meant the strata no longer wished to hear from the owner.

j.      On July 24, 2019, the strata emailed back that the owner could sill respond in writing or at a hearing. However, the owner had to reply by July 26, 2019.

40.   In Cheung, the strata imposed fines before providing the owner an opportunity to be heard. The strata reversed the fines, held a hearing, then imposed fines. The court found that the strata initially failed to comply with SPA section 135 but rectified its noncompliance before imposing the second set of fines.

41.   In this dispute I have found the strata imposed the fines before providing the owner written particulars of the complaint. This is because the strata sent the written particulars to the wrong address.

42.   The owner alerted the strata to this issue in his April 18, 2019 email. However, the strata did not reverse the fines. Instead, the strata compounded its error by trying to collect the fines. For example, the strata submitted its application for dispute resolution 2 days after the April 18, 2019 email. The strata sent the owner a demand letter the next month in May 2019. The strata also amended its Dispute Notice on July 15, 2019 by providing the owner’s Vancouver, BC address.

43.   I acknowledge that the strata provided the owner opportunities to respond in the July 4 and July 24, 2019 emails. However, these emails did not rectify or cure the strata’s noncompliance. As noted above, the strata failed to deliver the owner written particulars before it imposed fines. The strata sent the July 4 and July 24, 2019 emails several months after it decided to impose the fines in November 2018. The strata also sent these emails while it continued to seek payment of the fines from the owner.

44.   In summary, I find that the strata did not comply with the requirements of SPA section 135(1). The strata also did not cure or rectify its noncompliance prior to imposing the fines at issue.

45.   I dismiss this claim, and find the owner is not required to pay the fines.

Issue #3. Must the owner pay $1,020.00 in move fees and security move fees?

46.   Strata bylaw 41.6 says that an owner must pay the strata a move fee of $100.00 each time a tenant moves in and out of the owner’s strata lot.

47.   Strata bylaw 41.7 says that during a move, the strata must supply security personnel. The cost of security is charged to the owner. The bylaw also says security rates are published on move forms and posted. The parties did not provide a copy of the move forms.

48.   The owner says the fees are unreasonable. SPA section 110 says the strata may not impose user fees for the use of common property other than as set out in the Strata Property Regulation (SPR). SPR section 6.9 says that a strata corporation may not charge user fees for the use of common property or common assets unless the amount of the fee is reasonable.

49.   The strata did not itemize the fees in its Dispute Notice. However, it provided a May 2, 2019 statement of account. The strata attached the statement to the May 3, 2019 demand letter sent to the owner.

50.   The statement shows move fees and security move fees totaling $1,020.00 from November 15, 2017 to May 1, 2019. The statement shows the following entries:

a.    November 15, 2017 shows 2 move fees totaling $200.00 and 2 security move fees totaling $210.00,

b.    April 27, 2018 shows 2 move fees totaling $200.00 and 2 security move fees totaling $210.00,

c.    July 30, 2018 shows 2 move fees totaling $200.00, and

d.    April 29, 2019 shows 2 security move fee reversals totaling $420.00.

Move Fees

51.   I will first consider the move fees. These are separate from the security move fees, discussed below.

52.   The owner says the move fees are unreasonable for 2 reasons. First, it says the amount is excessive. The owner provided an excerpt from another strata’s bylaws. The owner says this shows the other strata charges move fees at half the rate.

53.   I disagree with this interpretation of the bylaw excerpt. It says that the other strata charges $100.00 for move-in fees. It is unclear from the excerpt if the other strata charges move-out fees as well. In this dispute the strata charged the owner $100.00 for move-in fees and $100.00 for move-out fees ($200.00 total) in November 2017, April and July 2018. The bylaw excerpt does now show that this is unreasonable. Also, fees charged by one strata are not binding on another, particularly where set out in a bylaw approved by the strata’s ownership. The fees may reflect factors specific to the strata, such as building size and elevator access.

54.   Second, the owner says that move fees should not be charged because unit 510 is fully furnished.

55.   I accept that unit 510 is fully furnished. However, I find that this, by itself, does not show that the move fees are unreasonable. The owner’s tenants presumably moved in with their own belongings. These belongings might include furniture. I note that if the owner wishes to change the bylaws at issue, he may attempt do so under SPA sections 43, 46, and 126 to 128.

56.   The owner says he rented unit 510 from April to the end of June 2018 to AK and SS. Given this, I find that the owner owes move fees of $200.00 for April 2018.

57.   The owner says he rented unit 510 to YS from July 2018 to August 2019. Given this, I find that the owner owes move fees of $200.00 for July 2018.

58.   The strata provided no evidence to support the November 2017 move fees. The owner did not provide any evidence on the issue. I find the strata has not proven this part of its claim.

59.   In summary, I find that the owner owes the strata $400.00 in move fees for April and July 2018. Within 15 days of the date of this order, I order the owner to pay the strata a total of $400.00 for move fees.

60.   I dismiss the strata’s claim for the November 2017 move fees of $200.00.

61.   The Court Order Interest Act (COIA) applies to the tribunal. The strata is entitled to pre-judgement interest on the sum of $400.00 from July 31, 2018 to the date of this decision. This equals $10.57.

Security Move Fees

62.   This leaves the security move fees of $420.00. I find the strata has not proven this part of its claim for 2 reasons. First, the strata reversed the security move fees on April 29, 2019. The strata’s statement of account indicates this amount is not owing.

63.   Second, SPA section 112 says that before a strata can initiate a dispute with the tribunal to collect money that the owner owes the strata, the strata must give at least 2 weeks’ written notice demanding payment.

64.   The owner does not say that the strata breached SPA section 112. I find that the May 3, 2019 demand letter largely complies with SPA section 112. However, the strata did not include the security move fees as part of the demand amount. It attached the statement of account that showed the security move fees were reversed. I therefore find that the strata did not give at least 2 weeks’ written notice demanding payment for the security move fees.

65.   I dismiss the strata’s claims for $420.00 in security move fees.

TRIBUNAL FEES AND EXPENSES

66.   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.

67.   I find that success is divided in this dispute. I decline to order tribunal fees. The parties do not claim dispute-related expenses. I therefore do not order any.

68.   The strata must comply with SPA section 189.4, which includes not charging dispute-related expenses against the owner.

ORDERS

69.   Within 15 days of the date of this order, I order the owner to pay the strata a total of $410.57, broken down as follows:

a.    $400.00 in bylaw move fees for April and July 2018, and

b.    $10.57 in pre-judgment interest under the COIA.

70.   The strata is entitled to post-judgement interest under the COIA, as applicable.

71.   The strata’s remaining claims are dismissed.

72.   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.

73.   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, the owner 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.