Date Issued: October 23, 2024

File: ST-2023-010992

Type: Strata

Civil Resolution Tribunal

Indexed as: Bains v. The Owners, Strata Plan EPS3242, 2024 BCCRT 1060

Between:

KAVITA SHARON BAINS

Applicant

And:

THE OWNERS, STRATA PLAN EPS3242

Respondent

REASONS FOR DECISION
Tribunal Member:	Deanna Rivers

INTRODUCTION

1.      This dispute is about moving fees. The applicant, Kavita Sharon Bains, is an owner of strata lot 260 (SL260) in the respondent strata corporation, The Owners, Strata Plan 3242 (strata). Mrs. Bains says that the strata’s moving fee is excessive. She claims $1,050 for reimbursement of a portion of 6 moving fees. She also asks for an order the strata stop charging the current moving fee, and charge $25 or $50 per move instead, depending on whether there is furniture.

2.      The strata says the moving fees are set by the strata bylaws. It says it properly assessed the fees. It also says the fee is typical of the strata’s building type.

3.      Mrs. Bains is self-represented. A council member represents the strata.

JURISDICTION AND PROCEDURE

4.      The Civil Resolution Tribunal (CRT) has jurisdiction over strata property claims under the Civil Resolution Tribunal Act (CRTA) section 121. CRTA section 2 says the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended. These are the CRT’s formal written reasons.

5.      CRTA section 39 says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me.

6.      CRTA section 42 says the CRT may accept as evidence information that it considers relevant, necessary, and appropriate, even where the information would not be admissible in court.

7.      Under CRTA section 123, 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.

Preliminary matters

8.      Mrs. Bains argues the moving fees are not justifiable under fair housing laws under hypothetical or speculative situations. She does not identify the alleged legislation infringed or explain how the enforcement of the moving fee discriminates against her. So, I decline to address this issue further.

9.      Mrs. Bains provided letters from the strata relating to other bylaw violations. I find this evidence is not relevant to the current issue, so I did not consider this evidence.

10.   Mrs. Bains says the alleged excessive moving fee may be an undue financial burden on owners and tenants. She argues that the fees exploit individuals struggling with the high cost of living. Mrs. Bains provided no evidence of actual undue financial burden or exploitation. I find these allegations not proved on the evidence.

11.   Mrs. Bains says the strata is collecting revenue unjustly, and the strata should be penalized. She does not claim a remedy for this, so I have not considered this issue in my decision.

ISSUES

12.   The remaining issues in this dispute are:

a.    Are the strata’s moving fees reasonable?

b.    Must the strata reimburse Mrs. Bains $1,050, or some other amount, for past moving fees?

c.    Is Mrs. Bains entitled to an order that the strata stop charging the current rate for moving fees, and charge another amount?

BACKGROUND

13.   The strata was created in 2016 and is governed by the Strata Property Act (SPA). It consists of a 53-storey high-rise residential building with 428 strata lots. SL260 is on the 30th floor. Mrs. Bains became an owner in 2021.

14.   On October 23, 2017, the strata passed bylaws 37.1 to 37.14 titled “Moving” which provide in part:

a.    All moves in and out of the building must comply with the bylaws.

b.    Moves must be scheduled with the concierge and approved by the concierge.

c.    Every owner, tenant or occupant moving into or out of the building must complete an Owner information form and provide the form to the concierge before being approved.

d.    Before moving into or out of the building, the moving party must pay to the strata:

                              i.        a non-refundable move fee of $300 that also applies to furnished rentals, and

                            ii.        a refundable security fee of $200 as security against damage caused during a move.

e.    A strata lot owner is responsible for any tenant or occupant of the strata lot moving in or out of the building, including being responsible for any damage to common property that occurs during the move.

f.     Moves are to occur between 9:00 a.m. and 6:00 p.m.

g.    The person moving must ensure that all common areas of the building are left without damage and as clean as when the move started.

h.    The concierge will lock out an elevator for the move, including installing elevator pads to protect the elevator when moving any furniture.

i.      The concierge and the person moving will have a before and after inspection of the common areas to identify any damage, and assess the cost of repairing damage or undertaking required cleanup, which will be deducted from the security fee. Any costs more than the security fee will be charged to the strata lot.

j.      The strata lot owner is responsible to ensure that all moves comply with these rules.

k.    Prior to the move the concierge must receive an owner information sheet, a form K (for a tenant), confirmation the person moving has received the bylaws and rules, the moving fee, and the security fee.

15.   The bylaws were filed in the Land Title Office (LTO) on November 6, 2017. There were 6 bylaw amendments after that date that are not relevant to this dispute.

16.   Mrs. Bains works both in Vancouver and overseas. When she is away, she rents her home. She is charged a moving fee each time she moves out and a tenant moves in. She says that fee does not equate to the level of service provided by the strata or the concierge. She says her tenants bring in only luggage as her strata lot is rented fully furnished.

EVIDENCE AND ANALYSIS

17.   As the applicant in a civil proceeding, Mrs. Bains must prove her claims on a balance of probabilities. This means more likely than not. While I have considered all the parties’ arguments, submissions, and evidence, I only refer to what is necessary to explain my decision.

Is the moving bylaw reasonable?

18.   The moving fee is a user fee under the SPA. SPA section 110 and the Strata Property Regulations (SPR) section 6.9(1) require user fees to be reasonable and set out in a bylaw or properly ratified rule. It is not disputed that bylaw 37 was validly passed and filed in the LTO. So, the question is whether the moving fee is reasonable.

19.   Bylaw 37 authorizes the strata to charge a $300 non-refundable fee for all moves in and out of the building. I note in argument that Mrs. Bains identified the fee as $200. However, the bylaw and the accounting records confirm the fee is $300.

20.   SPR section 6.9(2) says the user fee may be a fixed amount considering such factors as the recovery of operating or maintenance costs by the strata corporation, the number of users, and the duration of use.

21.   In The Owners, Strata Plan BCS 1721 v. Watson,[1] the BC Supreme Court found that user fee reasonableness must be determined on an objective standard. An assessment of whether a user fee is reasonable may account for prevailing market conditions and/or costs incurred by the strata,[2] in addition to the other SPR section 6.9(2) factors.

22.   As noted, the strata has 428 strata lots. Some of the strata lots are rented. There is no evidence of the frequency owners move compared to tenants. There is also no evidence of the frequency tenants of furnished rentals move compared to unfurnished rentals. As noted, the bylaws set the maximum duration of the use of the common property for moving at 9 hours.

23.   As neither party provided evidence of these section 6.9(2) factors, this dispute turns on the recovery of operating or maintenance costs by the strata, and prevailing market conditions.

Prevailing Market Conditions

24.   The strata argued that a consideration of prevailing market conditions by itself was sufficient to determine reasonableness. I disagree. I find I must consider the evidence provided about each of the factors set out in SPR section 6.9(2), as well as market conditions, and assess the relevance of each factor in the parties’ circumstances. No single factor can be presumed to take priority over another.

25.   Mrs. Bains says the standard moving fee where there is no furniture moved is $25, and when there is furniture, it is $50. However, she provided no evidence of moving fees in similar buildings in the range of $25 to $50.

26.   Instead, Mrs. Bains referred to several CRT cases[3], which are not binding on me. Also, CRT cases are not market conditions. In Watson v. The Owners, Strata Plan BCS 1721[4], the CRT found that the fee range for moving fees in 2016 was between $50 and $200 each month. That strata was in the lower mainland, but not in downtown Vancouver. In Frost v. The Owners, Strata Plan BCS 3463,[5] the strata provided evidence of moving fees in the range of $200 to $250 in Burnaby, but it was not clear if these fees applied to short term accommodations or moves with furniture. In Craig v. The Owners, Strata Plan VIS3743,[6] there was no evidence provided of the market conditions in Victoria. In Frost and Craig, the CRT found a $50 moving fee to be reasonable.

27.   The strata provided evidence of 4 other properties in downtown Vancouver that charge a moving fee of $300, and 2 with a $500 moving fee. These fees all applied to furnished condominiums.

28.   Based on this evidence, I find $300 is within the prevailing market conditions for moving fee for buildings in downtown Vancouver.

Costs incurred by the strata

29.   CRT decisions have found that moving fees may cover administrative costs associated with a new occupant of a strata lot, including communicating with the moving person, recording new occupant information, arranging elevator use, arranging for inspection of the common property before and after the move, damage to the common property, excessive wear and tear of the common property, updating the entry phone and key fob system and records, cleaning the common areas, supervising the move, and allowing utility access for services.[7]

30.   Bylaw 37 indicates that the fee includes the concierge’s time to schedule the move, do before and after inspections, lock the elevator from use by other persons, protect the elevator, ensure that bylaws have been provided, and collect administrative documents.

31.   The strata provided the strata’s income statement for June 2024, showing year to date moving fee revenue for the strata of $40,200. It showed a budgeted revenue for the year of $23,000. It also showed expenses related to concierge services of $202,897, facility management of $71,757, and management fees of $91,207. It noted that the moving fees generated approximately 5% of the common area maintenance and administrative costs.

32.   The moving bylaws in this dispute apply equally to furnished rentals, unfurnished rentals, and owner moves. Mrs. Bains argues that the move in a furnished rental causes less wear and tear on the common property. She acknowledges the other costs associated with a new occupant are similar in a move with or without furniture. She says the fees should reflect actual administrative costs and not exceed them.

33.   Mrs. Bains also relies on case law as evidence the moving fee is unreasonable. Watson had extensive evidence of the strata’s and concierge’s time spent on the tasks to accommodate a move. Clark and Frost dealt with a licensee and short-term accommodations. Some circumstances are similar in that the persons moving are moving only personal luggage or small items, but each building’s finishing and locations differ. While I have considered each decision, I place little weight on the amount ordered for moving fees, because the circumstances and evidence differ.

34.   Mrs. Bains says the moves into and out of her strata lot do not require coordination or supervision by the concierge. Mrs. Bains submitted that when her tenants move in, the only administration is the Form K, which she submits by email. She says there is no change to the fob or entry phone access. She says her tenants do not require orientation, security updates, or common area inspections, as they are not moving large belongings. Mrs. Bains estimates the administration would take 20 minutes.

35.   It is unclear to me why security updates and orientation are not required for Mrs. Bains’ tenants. I also find that while Mrs. Bains does not provide a change to the fob or entry phone access to her tenants, other owners with short term rentals may do so. I agree that moves without furniture require less or no inspection of the common area for cleanliness and damage.

36.   The strata submitted the administration included Form K processing, entry phone security system programming, and updating contact information and strata records. The strata provided no specific evidence of the increased costs to the strata due to a move without furniture, and no evidence of how long each of these tasks took. It did provide the strata manager’s fee agreement with the strata, which shows that support staff are charged to the strata at an hourly wage of $75.

37.   The strata also submits that the moving fee partially offsets the annual costs of strata management. It says that if there were no moves, the strata management would have fewer tasks and would charge less for their services.

38.   Based on the limited evidence, I find that the strata incurred expenses for administrative work by the concierge and the strata manager.

39.   The strata argues that as Mrs. Bains was aware of the moving fee when she bought the strata lot, and therefore is required to comply with it. It also argues that the moving fee is insignificant related to the value of SL260. I find that neither knowledge of a bylaw nor the value of property have a bearing on the reasonableness of a user fee.

40.   The strata submitted that the quality of this building’s finishings require higher maintenance requirements and repair costs. This includes annual budgets for paint, repairs, elevator cleaning, carpet cleaning, and other items. The strata provided evidence that maintenance and repair costs were budgeted at $508,500 each year. I note that the moving fees 5% contribution claimed by the strata includes both maintenance and administration costs.

41.   The strata says that the moving fees partially offset the ongoing maintenance and repairs of common areas that result from moves. The strata argues that it is not possible to specify the exact amount of extra maintenance or repair costs associated with moving. It says tenants in a furnished suite would have an appreciable number of suitcases and belongings to move. It does not say how this would differ from a person living in the strata lot but not moving. I agree with the strata that moving furniture is more likely to cause damage and more wear and tear of the common property areas. I agree with Mrs. Bains that moving with suitcases is different from moving with furniture.

42.   In any event, the costs of repairing moving damage are covered by a refundable $200 security fee charged under bylaw 37. I note that specific damage is distinct from increased costs for general repairs and maintenance to common property. To the extent the strata relies on repair costs for specific damage, I find the security fee addresses them.

43.   The strata referred to The Owners, Strata Plan LMW 2174 v. Angara Properties,[8] which stated moving fees may vary from building to building, and reflect factors specific to the strata, such as building size and elevator access. The strata did not provide any evidence of factors specific to this strata building, other than noting it was a high-end building. The strata also argues that the higher quality of finishings in the building justify a higher moving fee. I infer this is because the maintenance and repair costs are higher for high-quality finishings. I agree that a building’s structure, finishing, and amenities, among other factors, may affect moving fees. I do not find that the strata’s moving fee bylaw considers those factors.

44.   I also accept that moves increase traffic and add some increased maintenance or repair costs. I do not agree that a move with just hand-carried luggage or belongings has the same impact on maintenance and repair as a move with furniture.

45.   I find Mrs. Bains has proved the $300 moving fee is not reasonable for moves that do not involve furniture and do not require elevator padding. Considering both the prevailing market conditions and the limited evidence of the strata’s costs, I find on a judgment basis that a $150 moving fee is reasonable in these circumstances. I make no finding as to whether the $300 fee is reasonable in other circumstances.

Must the strata refund Mrs. Bains for moving fees?

46.   According to the strata transaction ledger for SL260 from January 7, 2022, to July 1, 2024, the strata assessed a $300 moving fee 5 times: on January 31, June 15, June 28, August 29, and October 3, 2023, totalling $1,500. Mrs. Bains claims a refund of $1,050, being $1,200 less the $25 for each move she says is reasonable.

47.   The strata’s October 5, 2023 letter indicates Mrs. Bain has not paid the moving fees imposed under the bylaw. As she has not paid the fees, I order the strata within 30 days of this decision to revise any moving fees imposed under bylaw 37 against SL260 between January 7, 2022, and the present, for moves not involving furniture, to $150 each.

Must the strata amend its moving bylaw?

48.   Mrs. Bains asks that the moving fees be capped at $25 for unfurnished units and $50 for furnished units. Neither party provided evidence or submissions about whether the moving fee was reasonable for moves with furniture.

49.   The courts (and the CRT) should not interfere with the democratic process of the strata unless absolutely necessary.[9] SPA section 164 permits the tribunal to remedy any acts of the strata corporation that are significantly unfair. Significant unfairness is an act that is oppressive or unfairly prejudicial, unduly burdensome, harsh, wrongful, lacking in probity or fair dealing, or done in bad faith. Whether the moving fee was significantly unfair was not argued by the parties. I have considered only the moving fee’s reasonableness in Mrs. Bains specific circumstances.

50.   The bylaws were approved by the strata ownership. I find that it would be contrary to the democratic process of the strata to order the bylaw changed in the absence of significant unfairness. I find that Mrs. Bains has not proved that a change to the bylaws is absolutely necessary, and I dismiss this claim.

51.   I note that Mrs. Bains may attempt to change the bylaw under SPA sections 43, 46, and 126 to 128.

CRT FEES

52.   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 find Mrs. Bains was partly successful and order the strata to reimburse Mrs. Bains $112.50 for half of her paid CRT fees.

53.   The strata did not pay CRT fees.

DISPUTE-RELATED EXPENSES

54.   Each party claimed dispute-related expenses of $250 related to research, document management, and data collection for this dispute.

55.   The strata provided an invoice from FirstService Residential, which I infer is its strata manager, for 2 hours at an hourly rate of $125, totalling $262.50 after taxes. The invoice notes “Per Schedule B – Agency Agreement.”

56.   CRT rule 9.5(2)(c) says the CRT can order reimbursement of reasonable expenses and charges it considers directly relate to the conduct of its process. The strata’s agency agreement with its strata management company says it will charge litigation support and historical research at an hourly rate of $125 for the strata manager and $75 for support staff.

57.   Mrs. Bains does not specifically challenge the reasonableness of the strata management fees for this dispute, although she says they should be reciprocal. I find nothing unreasonable about them. As the strata was partly successful, I order her to reimburse half its dispute-related expenses, or $131.25.

58.   Mrs. Bains did not provide any receipts for expenses. She says she spent time on research and preparing for this dispute. CRT rule 9.4(5) says that except in extraordinary circumstances, the CRT will not order compensation for time spent dealing with a CRT proceeding. I find the circumstances of this dispute are not extraordinary. I do not allow Mrs. Bains’ claim for dispute-related expenses.

59.   The strata may not charge any dispute-related expenses against Mrs. Bains under SPA section 189.4.

ORDERS

60.   I order the strata to revise all moving fees charged against SL260 from January 7, 2022, to the present, for moves that do not involve furniture, from $300 to $150.

61.   I order Mrs. Bains to pay the strata a total of $18.75, being:

a.    $131.25 in dispute-related expenses, less

b.    $112.50 in CRT fees.

62.   I dismiss the remainder of Mrs. Bains’s claims.

63.   This is a validated decision and order. 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 in which it is filed.