Date Issued: November 26, 2020

File: ST-2020-002216

Type: Strata

 

Civil Resolution Tribunal

Indexed as: Gee v. The Owners, Strata Plan EPS2461, 2020 BCCRT 1338

Between:

MOW JUNE GEE

APPLICANT

And:

The Owners, Strata Plan EPS2461

Respondent

REASONS FOR DECISION
Tribunal Member:	Trisha Apland

INTRODUCTION

1.      This dispute is over alleged bylaw contraventions in a strata development.

2.      The applicant, Mow June Gee, owns Strata lot 27 (SL27) in the respondent strata corporation, The Owners, Strata Plan EPS2461 (strata).

3.      The strata has a bylaw prohibiting Airbnb and other short-term accommodation in a residential strata lot. There is no dispute that Mr. Gee had rented out SL27 since at least 2017 to long-term tenants and his tenant used SL27 as an Airbnb from time to time.

4.      The strata fined Mr. Gee $11,000 for allegedly using SL27 as an Airbnb contrary to its bylaws. It also charged Mr. Gee a $307.25 fee it incurred to book the strata lot through Airbnb when investigating the alleged contravention.

5.      Mr. Gee says his tenant used SL27 as an Airbnb without his knowledge. Mr. Gee says that he removed his tenant after the strata notified him about the improper use. Mr. Gee says the strata retroactively applied the fines and charged back the booking fee without the authority to do so. Mr. Gee asks for an order that the strata cancel the $11,307.25 that it applied to his strata lot account.

6.      Mr. Gee is self-represented. The strata is represented by a strata council member.

JURISDICTION AND PROCEDURE

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

8.      The CRT 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 CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in court. The CRT 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 CRT rules, in resolving this dispute the CRT may order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the CRT considers appropriate.

ISSUES

11.   The issues in this dispute are:

a.    Did Mr. Gee breach the strata’s bylaws by using or permitting SL27 to be used as an Airbnb?

b.    Was the strata permitted to fine Mr. Gee for his tenant’s bylaw breaches and charge Mr. Gee the booking fee expense?

c.    Must the strata cancel the $11,307.25 in fines and fees?

EVIDENCE AND ANALYSIS

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

13.   The strata building is a 44 level high-rise with 22 residential strata lots.

14.   The strata says its council members received multiple complaints from neighbouring strata lots of unusual activity in SL27 in 2016 and 2017. The strata says council investigated and concluded that SL27 was likely being used as an Airbnb short-term accommodation. The strata does not say that it notified Mr. Gee about the complaints or suspected Airbnb use in 2016 or 2017, so I find that it did not. The strata also did not have a bylaw preventing short-term accommodations at that time.

15.   On June 1, 2018, the strata filed a bylaw amendment in the Land Title Office (LTO) adding Bylaw 36(1)(a) to restrict Airbnb and other short-term rental and accommodation arrangements. The relevant portions of Bylaw 36 state:

(1)(a) An owner, tenant or occupant must not use or permit to be used a residential strata lot, common property or common assets in a way that is for commercial or professional purposes or activities, including but not limited to the following:

(i) Short-term rentals.

[…]

(vi) Airbnb, Homeaway, VRBO or any other vacation like, short-term rental or short-term accommodation arrangements.

16.   I note that in the strata’s own compilation of bylaws submitted in evidence, the strata renumbered Bylaw 36(1)(a) to be Bylaw 37(1)(a). The wording is the same. In this decision, I refer to it as Bylaw 36(1)(a) because that is how it was filed in the LTO.

17.   Council continued to investigate potential Airbnb use of SL27. In November 2018, council successfully booked accommodation in SL27 through the Airbnb listing for a total cost of $307.25. I note the $307.25 is the disputed booking fee expense at issue here.

18.   Mr. Gee says he had no knowledge that his long-term tenant was using SL27 as an Airbnb until September 17, 2019, which I accept. The Airbnb “host” is not Mr. Gee and there is no evidence showing Mr. Gee had notice of the Airbnb use prior to this date. The strata also does not say that it told Mr. Gee (or his tenant) about the complaints or its investigation prior to September 2019.

19.   I find Mr. Gee did not know about the Airbnb use until the strata notified him by letter dated September 17, 2019. In that September letter the strata property manager wrote that council received a report that SL27 was listed on the Airbnb website contrary to its bylaws. It notified Mr. Gee that if it received no reply it would impose a $200 fine per day, plus the $307.25 booking fee expense to his strata lot account.

20.   The strata held a hearing on October 3, 2019 with Mr. Gee on the issue. The hearing minutes are not in evidence.

21.   On October 18, 2019, the property manager wrote to Mr. Gee that council “understands” both that Mr. Gee was unaware of the tenant’s short-term accommodation use and that Mr. Gee tried to mitigate the matter by removing the tenant. However, council decided that as the owner, Mr. Gee was responsible for his tenant’s behaviour and must bear any financial penalty with respect to the bylaw infraction. The council charged Mr. Gee $307.25 for the strata’s booking fee expense. They also imposed “54 fines from May of 2018 to current in the amount of $11,000 ($200 per infraction).” I find the strata miscalculated the fines (54 x $200 = $10,800). However, I find the miscalculation irrelevant because as I explain further below, I find the strata had no authority to impose these retroactive fines.

22.   On February 21, 2020, the strata notified Mr. Gee that it intended to put a lien against SL27 for the unpaid fees and fines, plus charge him for the lien expenses. It is not clear on the evidence if the strata placed the lien. As Mr. Gee did not claim a remedy related to the lien, I have discussed it no further here.

Did Mr. Gee breach the strata’s bylaws by using or permitting SL27 to be used as an Airbnb?

23.   The tenancy agreements in evidence show that Mr. Gee rented SL27 to long-term tenants, which I find was permitted under the strata’s bylaws. I find it was Mr. Gee’s tenant and not Mr. Gee who used SL27 as an Airbnb. I find Mr. Gee did not use SL27 himself as an Airbnb or short-term accommodation contrary to Bylaw 36(1)(a).

24.   There is no suggestion that Mr. Gee expressly permitted his tenant’s short-term use. As mentioned, I accept Mr. Gee’s uncontradicted evidence that he did not know his tenant was using SL27 as an Airbnb until he received the strata’s September 17, 2019 letter. As it is undisputed, I also accept that Mr. Gee ended the tenancy agreement once he learned his tenant was using SL27 contrary to Bylaw 36(1)(a)(vi). So, I find Mr. Gee did not explicitly or implicitly “permit” the use of SL27 as an Airbnb.

25.   I find Mr. Gee did not breach the strata’s bylaws.

Was the strata permitted to fine Mr. Gee for his tenant’s bylaw breaches and charge Mr. Gee the booking fee expense?

26.   The strata is obligated to enforce its bylaws under section 26 of the Strata Property Act (SPA). However, it is only permitted to fine an owner for a bylaw breach in compliance with the SPA requirements.

27.   SPA section 130(1) says the strata may fine an owner in the following 3 circumstances: if a bylaw is contravened by the owner, if a person visiting the owner or admitted to the premises by the owner violates a bylaw, or if an occupant violates a bylaw and the strata lot is not rented by the owner to a tenant.

28.   SPA section 130(2) says the strata may fine a tenant if a bylaw is contravened by the tenant, a person visiting the tenant or admitted to the premises by the tenant, or an occupant, if the strata lot is not sublet to a subtenant.

29.   SPA section 131 says that if a strata fines a tenant or requires them to pay the costs to remedy a bylaw contravention, the strata may require the owner or landlord to pay the fine or costs. Here the strata never fined the tenant for the bylaw contraventions. It also never claimed reimbursement of the booking fee as an expense under SPA section 131, if that was allowed. Instead, the strata directly fined the owner, Mr. Gee and charged the fee to his account. I find this was not consistent with the SPA requirements.

30.   I find the strata had no other authority under the SPA or its bylaws to apply the fines or charge Mr. Gee for its booking fee expense.

31.   For the above reasons, I find the strata must cancel the $11,000 in fines and $307.25 fee that it applied against Mr. Gee’s strata lot account.

32.   Even though this ends the matter, I would have also ordered the strata to reimburse the fines for another reason. As I discuss next, I find the strata was not permitted to charge the bylaw contravention fines retroactively as it did here.

33.   Section 135 of the SPA addresses how and when the strata can impose fines. SPA section 135(1) states that a strata corporation may not impose a bylaw fine unless it has received a complaint, given the owner or tenant written particulars of the complaint and a reasonable opportunity to answer the complaint, including a hearing if requested. SPA section 135(2) says the strata must also give notice in writing of its decision to impose the fine to the owner as soon as feasible. SPA section 135(3) says that once the strata has complied with these procedural steps, the strata may impose fines or penalties for a continuing contravention without further compliance with those steps.

34.   The requirements of SPA section 135 must be strictly followed before a fine can be imposed, as set out in Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449, a leading BC Court of Appeal decision on this issue.

35.   In Shen v. The Owners, Strata Plan LMS 970, 2020 BCCRT 953, a CRT vice chair held that a strata cannot impose bylaw infraction fines retroactively, beyond the date it gave notice to the owner under SPA section 135. While Shen is not binding on me, I find it persuasive.

36.   The strata here imposed fines based on Airbnb customer reviews for alleged stays in SL27 back to May 2018. I find that charging retroactive fines on past customer reviews is akin to charging fines before it notified Mr. Gee of the particulars of the complaint. I find this is not permitted under SPA section 135. I find the strata could not impose fines before it gave Mr. Gee the particulars of the complaint and an opportunity to be heard, which it did not do until September 17, 2019. I also find the strata could not impose fines for occurrences prior to Bylaw 36(1)(a) coming into force on June 1, 2018. For these reasons, I would have set aside the retroactive fines even had Mr. Gee breached the bylaw himself.

37.   Under section 49 of the CRTA, and the CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. I therefore order the strata to reimburse Mr. Gee for paid CRT fees of $225. Mr. Gee claimed no dispute-related expenses.

38.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Mr. Gee.

ORDERS

39.   I order the strata to do the following:

a.    immediately cancel the $11,000 in bylaw contravention fines from Mr. Gee’s strata lot account,

b.    immediately cancel the $307.25 booking fee expense from Mr. Gee’s strata lot account, and

c.    pay Mr. Gee a total of $225 within 30 days of this decision, as reimbursement for his CRT fees.

40.   Under section 57 of the CRTA, a validated copy of the CRT’s order can be enforced through the British Columbia Supreme Court. Under section 58 of the CRTA, the order can be enforced through the British Columbia Provincial Court if it is an order for financial compensation or return of personal property under $35,000. Once filed, a CRT order has the same force and effect as an order of the court that it is filed in.