Date Issued: April 27, 2020

File: ST-2019-010944

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan BCS 1455 v. Bakhshi, 2020 BCCRT 453

Between:

The Owners, Strata Plan BCS 1455

Applicant

And:

MORTEZA BAKHSHI

Respondent

INTRODUCTION

1.      The respondent, Morteza Makhshi (owner), co-owns strata lot 98 (SL98) in the applicant strata corporation, The Owners, Strata Plan BCS 1455 (strata).

2.      The strata is represented by a strata council member in this dispute. The owner is self-represented.

3.      The strata says the owner used SL98 for short-term accommodations (STAs) such as Airbnb, contrary to the strata’s bylaws. It requests an order that the owner pay $10,519.90 in bylaw contravention fines.

4.      The owner admits that he used SL98 for STAs. However, the owner disputes the amount of the fines, and says they were calculated incorrectly. The owner says the total fines should only be $10,000.00. He also says he cannot afford to pay the fines.

5.      For the reasons set out below, I dismiss the strata’s claim for payment of bylaw fines.

JURISDICTION AND PROCEDURE

6.      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.

7.      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.

8.      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.

9.      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.

ISSUE

10.   Must the owner pay the strata $10,519.90 in bylaw violation fines?

EVIDENCE AND ANALYSIS

11.   I have read all the evidence provided but refer only to evidence I find relevant to provide context for my decision. In a civil proceeding like this one, the applicant strata must prove its claims on a balance of probabilities.

12.   The strata filed consolidated bylaws with the Land Title Office in June 2019. I find that these are the bylaws that apply to this dispute.

13.   Bylaw 56 is titled “Short Term Accommodation”. Bylaw 56.1 says a strata lot may not be used for short-term accommodation purposes, such as a bed-and-breakfast, lodging house, hotel, time share, or vacation rental.

14.   Bylaw 56.2 says that for the purpose of bylaw 56, “short-term” means less than 30 days.

15.   Bylaw 56.5 says the strata may fine an owner up to $1,000 for a contravention of bylaw 56, and may continue to find the owner on a daily basis if the contravention continues.

16.   In his submissions to the tribunal, and in correspondence with the strata, the owner admitted that he used SL98 for STAs. The strata also provided other evidence confirming the STAs. This includes the listing and reviews from the Airbnb website, the complaint letter from the owner of the strata lot next to SL98, the building manager’s reports, and the emails from council members documenting new STA guests in SL98.

17.   For these reasons, I accept that the owner breached bylaw 56 by using SL98 for STAs.

Ability to Pay

18.   The undisputed evidence in this case is that the strata initially fined the owner $40,000.00 for the bylaw breach, but reduced the fine to $10,000.00 based on the owner’s financial need arguments presented at 2 hearings before the strata council.

19.   The owner says that even the $10,000.00 fine is inappropriate because he cannot afford to pay it.

20.   The owner’s ability to pay a fine does not change his obligations to follow the strata’s bylaws. Under SPA sections 130 and 135, a strata is entitled to fine an owner for a bylaw contravention after giving the owner written notice with particulars of the complaint and an opportunity to respond. There is no provision in the SPA or bylaws for reducing a fine due to an owner’s inability to pay.

21.   For these reasons, I find that the owner’s financial circumstances are not relevant in determining whether he must pay the bylaw fine.

SPA Section 135

22.   SPA section 135 says that before fining an owner for a bylaw contravention, the strata must give the owner written particulars of the complaint and a reasonable opportunity to respond. I find the $10,000.00 fine imposed by the strata cannot stand because the strata did not meet the procedural requirements of section 135.

23.   The strata first sent the owner a written notice about the STA bylaw breach on July 18, 2019. The letter cited the relevant bylaws. It set out the particulars of the complaint somewhat vaguely, as follows (reproduced as written):

Strata Council is in receipt of complaint(s) from member(s) of the Strata Corporation to the effect that the above noted strata lot. This was confirmed by a listing on VRBO. It was also reported that vehicles in neighbouring parking stalls are being dented from all of the different vehicles parked in your assigned stall. This incident was reported on July 8, 2019 at 8:00 am.

24.   The letter said that if the owner did not respond by August 1, 2019, the strata council would make a decision on the reported bylaw contravention, and might levy a fine in accordance with the bylaws.

25.   The owner acknowledged receiving this letter in a July 31, 2019 email to the council president. He wrote that due to his personal and financial circumstances, he was using SL98 for STAs. He asked the strata to accommodate him. The president replied that STAs were not permitted in the strata, and there was no provision for flexibility. She recommended that the owner delete his listings on the VRBO and Airbnb websites “in order to avoid further fines”. She also asked him to “formally respond” to the July 18, 2019 letter through the property manager’s website.

26.   A document entitled “Bylaw Violation Report – Submission” shows that someone (possibly the owner) uploaded a copy of the owner’s July 31, 2019 email to the president as an official response to the strata’s July 18, 2019 letter.

27.   The owner emailed the president again on August 2, 2019. He thanked her for her suggestions, and said he had cancelled all reservations and was looking for a long term tenant. He wrote, “I have officially answered the strata concerns.”

28.   The next correspondence between the owner and the strata is dated August 15, 2019. On that date, the strata wrote to the owner and said that his strata lot account had accumulated $40,000.00 in fines for short term rental violations from July 1, 2019 to August 9, 2019.

29.   I find that the correspondence from the strata does not meet the requirements of SPA section 135. First, I find the strata’s July 18, 2019 letter did not give sufficient particulars of the complaint. Although it mentions STAs and VRBO, it did not clearly explain what the alleged violation was. It also did not instruct the owner to stop STAs.

30.   Second, the strata’s August 15, 2019 letter says fines were imposed for a period starting on July 1, 2019. This was before the strata had given written notice of the contravention, which is contrary to section 135.

31.   Third, in his August 2, 2019 email to the president, the owner wrote that he had answered the strata’s concerns. Since no one responded to that email for 13 days, and since no one informed him that any fines had been imposed or were accruing, I find it was reasonable for him to assume that he was not being fined. The strata’s July 18, 2019 letter said the owner would be fined if he did not respond, and he responded. There is no correspondence in evidence setting out the council’s decision to impose fines. Rather, the July 18 letter said there would be fines if the owner did not respond (which he did), but the August 15 letter states fines began to accrue on July 1.

32.   In Cheung v. The Owners, Strata Plan VR1902, 2004 BCSC 1750, the court held that a strata can cure a procedural breach of section 135 if it reverses a fine and provides new notice documents. However, that is not the case here, as the strata only reduced the fine, and did not reverse it.

33.   For all of these reasons, I dismiss the strata’s claim for payment of bylaw fines. I find the fines were imposed contrary to section 135. Therefore, even though the owner initially agreed to pay the lowered amount, I find he is not obligated to do so because the fines were invalidly imposed.

Calculation of Fine

34.   Finally, the owner says the $10,519.90 fine imposed by the strata was calculated incorrectly, and the proper amount of the fine is $10,000.00.

35.   The strata’s November 15, 2019 letter says that after a recent council hearing, the strata had reduced the fine to $10,000.00. The SL98 ledger provided in evidence shows that the remaining $519.90 represents other charges, including a move in/out fee, an amenity room charge, an unspecified “adjustment”, and an unexplained additional bylaw fine of $200. The strata’s only claim is about the bylaw fines for STAs, and it has not proven that these amounts are part of that fine. Rather, I find the ledger shows that the $519.90 is not related to the STA bylaw fine.

36.   For these reasons, even if I had found that the owner must pay the fine (which I do not), I would not have ordered payment of the full $10,519.90.

TRIBUNAL FEES AND EXPENSES

37.   The applicant strata was unsuccessful in this dispute. In accordance with the CRTA and the tribunal’s rules I find it is not entitled to reimbursement of tribunal fees or dispute-related expenses.

38.   The owner did not claim dispute-related expenses.

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

ORDER

40.   I order that the strata’s claim, and this dispute, are dismissed.