Rentals and Short-Term Accommodation (22:XI)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 24, 2023.|
A. Introduction to Residential Strata Lot Rentals and Use for Short-Term Accommodation
Restricting the rental of any strata lot is prohibited under s 141 of the SPA. As a result, a bylaw that restricts the rental of a strata lot is not enforceable. Effective November 24, 2022, a strata corporation also may not prohibit or otherwise restrict the rental of a residential strata lot, but may, by bylaw, limit the use of residential strata lots.
B. No Restriction on Rentals
1. Bylaws that Limit Disposition of Strata Lots
Section 121(1)(c) of the SPA provides that a bylaw is not enforceable to the extent that it prohibits or restricts the right of a strata lot owner to freely sell, lease, mortgage, or otherwise dispose of a strata lot or an interest in a strata lot. There are no exceptions related to rentals.
A strata corporation may also not adopt bylaws that require a strata lot owner to seek the corporation’s approval of prospective tenants or establish screening criteria for tenants.
2. Bylaws Requiring the Approval of Rentals of Tenants
Section 141 of the SPA provides that a strata corporation must not, among other things, require the approval of tenants. Even if a strata corporation is not requiring the approval of specific tenants, there is no justification for a bylaw requiring strata council approval of strata lot rentals, as a bylaw limiting the number of rentals is not enforceable.
In Skipsey v The Owners, Strata Plan 1538, 2020 BCCRT 247, the revised wording of a bylaw up for contention at the CRT read as follows:
“Rentals will be considered by the strata council, on a case-by-case basis. Any approved rental will have a maximum period. Rental management to be approved by the council. Additional strata charges may be charged for rental units. No owner shall lease or rent a strata lot without the written permission of the strata council or a motion at a strata council meeting.”
This bylaw was found to be unenforceable.
C. Use of Strata Lots for Short-Term Accommodation
While a bylaw cannot restrict the rental of a strata lot, a strata corporation may, by bylaw, restrict the use of a strata lot by prohibiting licensing the use of all or part of a strata lot for short-term accommodation purposes. The question becomes what the difference is between a strata lot rental and a licence.
In The Owners Strata Plan VR 2213 v Duncan & Owen, 2010 BCPC 123, the court held that the accommodation in question was akin to hotel-type accommodation, and this type of accommodation was subject to a licensing agreement and could be restricted by a strata corporation. Further, in The Owners, Strata Plan VR 812 v Yu, 2017 BCCRT 82, the CRT held that a strata lot owner using their strata lot as an Airbnb unit was in contravention of a strata corporation’s bylaw prohibiting the use of a strata lot except as a “private dwelling home” and another of the strata corporation’s bylaw prohibiting the use of a strata lot for short-term accommodation.
A strata corporation may also be able to rely on Nanaimo (Regional District) v Saccomani, 2018 BCSC 752 as authority that hotel-type accommodation is not a “residential use,” so even absent a bylaw, would be contrary to the intended use of the strata lot if a strata plan shows, expressly or by necessary implication, that a strata lot or common property is intended for a residential purpose.
D. Age Restrictions and Rentals
A strata corporation may adopt a bylaw that requires one or more persons residing in a strata lot to have reached a specified age that is not less than 55 years (ss. 121(2)(c) and 123.1). This does not apply to someone if they were residing in the strata lot when the bylaw was passed, and is not required to vacate the strata lot if they do not meet the age requirement.
1. Definition of Tenant
A “tenant” is defined in s. 1(1) of the SPA as a person who rents all or part of a strata lot and includes a subtenant. A roommate falls within the definition of “tenant” under the SPA.
A “tenant” should not be confused with an “occupant.” Section 1(1) defines an “occupant” as a person, other than an owner or a tenant, who occupies a strata lot. Therefore, an “occupant” may be a spouse, child, or friend of an owner or tenant.
2. Creating a Tenancy
In s. 1 of the Residential Tenancy Act, SBC 2002, c 78 (“RTA”), “tenancy” means a tenant’s right to possession of a rental unit under a tenancy agreement. A “tenancy agreement” means an agreement, whether written or oral, express or implied, between a landlord and a tenant respecting possession of a rental unit and use of common areas and services and facilities and includes a licence to occupy a rental unit.
Based on the decision in The Owners, Strata Plan VR 2213 v Duncan & Owen, 2010 BCPC 123, a bylaw prohibiting the use of all or part of a strata lot for short-term accommodation will not be effective to prevent rental of a strata lot if the parties’ relationship is determined on consideration of all relevant circumstances to create a tenancy.
3. Notice of Tenant’s Responsibilities
Before a landlord rents all or part of a residential strata lot, the landlord must give the tenant a copy of the current bylaws and rules and a Notice of Tenant’s Responsibilities (Form K of the SPR) (s. 146(1)(a) and (b)). Within two weeks of renting all or part of a residential strata lot, the landlord must give the strata corporation the Notice of Tenant’s Responsibilities, executed by the tenant (s. 146(2)).
4. Assignment of Landlord’s Duties and Powers
An owner of a strata lot, as landlord, may assign to a tenant some or all of the powers and duties of the strata lot owner that arise under the SPA or by virtue of bylaws and rules (s. 147(1)). The assignment is not effective until the landlord gives the strata corporation written notice stating the name of the tenant, the nature of the powers and duties assigned, and the time period during which the assignment is effective. There is no prescribed form for this purpose (s. 147(2)).
5. The Long-term Residential Lease
Under s. 148, an assignment of a landlord’s powers and duties is automatic for a long-term residential lease. A “long-term lease” is a lease of three years or more (s. 148(1)). A residential strata lot under a long-term lease is a deemed assignment of the landlord’s powers and duties, but the tenant must give the strata corporation written notice of the assignment before it is effective (s. 148(3)). There is no prescribed form for this purpose.
The strata corporation must give a copy of the notice received from the tenant to the landlord and to the strata lot owner if the owner is not the landlord (s. 148(4)); for example, in the case of subletting.
There are some powers and duties that the owner may not assign, such as liability for fines or the costs incurred by the strata corporation to remedy a tenant’s contravention of bylaws or rules. Similarly, the tenant with an automatic assignment under s. 148 may not exercise the powers or duties of an owner in a few specified instances that deal with disposition of an interest in land by the strata corporation, unless the owner consents (s. 148(6)).
6. Election to Strata Council
A residential or commercial tenant may be elected to strata council (s. 28), provided that the landlord has assigned, in writing, the landlord’s specific right to be on the strata council (s. 147). The decision in Jay v The Owners Strata Plan NW 3353, 2018 BCSC 780 provides that there must be a tenancy agreement between the landlord and tenant to appoint the tenant as a representative to be elected to the strata council.
7. Authority to Receive Documents and Records
A tenant or former tenant who has or who had the benefit of an assignment from the landlord is entitled to all the same information that the SPA makes available to a strata lot owner. A list of records and documents that a strata corporation must prepare and retain can be found in section 35 of the SPA.
A tenant or formal tenant may also request a copy of the rules and bylaws or to inspect the rules and bylaws. This must be provided within one week of the request. For former tenants, these documents can only be relating to the period of time during which the former tenant was a tenant (s 36(1.1)).
8. General Meetings
Annual or special general meetings require two weeks’ written notice. The notice must go to a tenant if the tenant has an assignment of the landlord’s rights and the strata corporation has received notice of the assignment (s. 45(1 (c)). A tenant with an assignment from a landlord of the landlord’s right to vote may vote at a general meeting, provided that the strata corporation has received notice of the assignment (s. 45(1)(c)).
Tenants may also attend general meetings with or without eligibility to vote under Standard Bylaw 26, but must leave the meeting if they are ineligible to vote and those present, by majority vote, request the tenant to do so.
9. Right to Be Heard
A tenant may request, in writing, a hearing of strata council and attend a council meeting for that purpose (s. 34.1).
10. Short Term Use of Common Property
Section 76 of the SPA authorizes the strata corporation to give a tenant permission to use exclusively or have special privileges in connection with common assets or common property. The permission may be for up to one year initially and have conditions attached to it. Strata council may revoke the permission on reasonable notice or renew it for a fixed duration and/or on conditions.
11. Right to Benefit of Insurance
According to s. 155, a tenant is another named insured on the strata corporation’s insurance policy. Therefore, where a tenant occupies a strata lot and suffers damage as a result of a loss, the tenant is entitled to claim on the strata corporation’s insurance in circumstances where the owner of the strata lot could do so, despite not being an owner in the strata corporation.
F. Legal Proceedings on Tenancy Disputes
1. Taking Legal Action
A tenant may sue a strata corporation by application to the Supreme Court to seek a remedy or seek to prevent a significantly unfair action or decision of the strata corporation in relation to the tenant (s. 164(1)).
The Civil Resolution Tribunal Act, SBC 2012, c 25 also permits a tenant to initiate a tribunal proceeding against a strata corporation as well as a former tenant if it is regarding a matter that occurred when the person was a tenant, per Gill v The Owners, Strata Plan EPS 4403, 2020 BCCRT 228.
2. Appointing an Administrator
A tenant, as a person with an interest in a strata lot, may apply to the Supreme Court for the appointment of an administrator to exercise the powers and perform the duties of the strata corporation (s. 174(1)).
Both the tenant and a strata corporation can refer a dispute between each other to arbitration under s 177 of the SPA.
G. Powers of the Strata Corporation
1. Collecting Money Owed by a Tenant
If a tenant owes money to the strata corporation, the strata corporation must give the tenant two weeks’ written notice demanding payment and indicating that action may be taken if payment is not made within two weeks (s. 112(1)). If the money is not paid, the strata corporation can pursue a lawsuit, arbitration, or initiate a proceeding against the tenant.
2. Evicting a Tenant
A repeated or continuing contravention by a tenant of a reasonable and significant bylaw or rule allows the landlord to give the tenant notice terminating the tenancy agreement under s. 47(1) of the RTA (s. 137). The strata corporation can stand in the place of the landlord if the tenant repeatedly contravenes a significant and reasonable bylaw or rule that seriously interferes with another person’s use and enjoyment of a strata lot or the common property.
3. Fining a Tenant
A strata corporation may fine a tenant if a bylaw or rule is contravened by the tenant; a person visiting the tenant or a person admitted to the premises by the tenant for social, business, or family reasons or any other reasons; or an occupant, if the strata lot is not sublet by the tenant to a subtenant (s. 130(2)). The strata corporation may also require a tenant to pay reasonable costs of remedying a bylaw or rule contravention under s. 133(2). If the strata corporation fines a tenant or requires the tenant to pay such costs, it may collect the fine or costs from the tenant (s. 131(1)). However, the strata corporation may not collect from both the landlord and the tenant in excess of the amount owing (s. 131(1)). The strata corporation must strictly follow section 135 when enforcing a bylaw against a tenant. It is not permissible to enforce a tenant’s bylaw contraventions against the tenant’s landlord: see The Owners, Strata Plan KAS 1622 v Kamloops (Pacific No. 52) Branch of the Royal Canadian Legion, 2022 BCCRT 205.
If a strata corporation fines a tenant, it may collect the fines from the owner.
4. Denying Access to Facilities
A strata corporation may, for a reasonable length of time, deny a tenant the use of a recreational facility that is common property or a common asset if the tenant has contravened a bylaw or rule relating to the recreational facility (s. 134).
5. Enforcing a Short-term Accommodation Bylaw
A strata corporation can set out in its bylaws a maximum fine of $1,000 per day for the contravention of a bylaw that prohibits or limits use of all or part of a residential strata lot for renumeration as vacation, travel, or temporary accommodation.
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