Strata Law and Residential Tenancies of Strata Lots (Condominiums) (19:XIII)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on September 7, 2020.|
The Strata Property Act (SPA)and the Strata Property Regulation (SPR) govern strata properties. Persons renting a residential condominium are tenants under the RTA. Such tenants are also subject to Parts 7 and 8 of the SPA. Below is a brief description of the SPA as it relates to landlords and tenants.
A. The Law Under the Strata Property Act
The definition section refers to both “landlord” and “tenant”. A tenant is a person who rents all or part of a strata lot, and includes a sub-tenant, while a landlord can include a tenant who rents to a sub-tenant.
Part 7 of the SPA covers bylaws, rules, fines, and eviction (ss 119 - 138):
• s 120 provides for standard form bylaws, which can be amended;
• s 123 states that a bylaw prohibiting pets does not apply to a pet already living with a tenant when the bylaw is passed. This section also deals with age bylaws. Tenants can be well-served by reviewing the Human Rights Code to see if the bylaw is enforceable (see s 121(1)(a) of the SPA as it relates to age). Specifically, see section 10 of the Human Rights Code;
• s 124 states that bylaws can provide for a voluntary dispute resolution process to settle disputes between owners, tenants, and the strata corporation. It also states that statements or documents made only for the purpose of such voluntary dispute resolution cannot be reused at other legal proceedings;
• s 125 gives the strata corporation the power to make rules governing use, safety and condition of the common property and assets;
• s 130 permits fines to be levied if a tenant or his or her guest contravenes a bylaw or rule; Section 7.1 of the SPR gives the maximum amount and frequency by which a fine can be levied.
• s 131 provides that the strata corporation may collect fines levied against a tenant both from the tenant and from a landlord/owner. If the landlord/owner pays a fine levied against the tenant, the tenant owes the landlord/owner the amount paid; section 7 of the RTA, sets out “fees” that landlords can charge provided they do not contradict s 131 of the SPA, subject to a duty to mitigate by both sides;
• s 133 allows for the strata corporation to also recover reasonable costs of remedying a contravention of the bylaws from the person whom they fined pursuant to s 130;
• s 134 states that the strata corporation may, for a reasonable length of time, deny a tenant the use of a recreational facility that is common property in the strata if the tenant (or guest of the tenant) has contravened a bylaw or rule relating to the recreational facility;
• s 135 states that the strata corporation must not impose fines or deny the use of recreational facilities unless the particulars of a complaint have been given in writing and reasonable opportunity is given to answer the complaint, including a hearing if requested by the tenant. The strata corporation must also give prompt notice in writing of any decision it reaches concerning a fine or denial of recreational facility.
NOTE: This is a highly technical section. Often strata corporations do not comply with it very well and technical defences are available on a close reading of the section and the correspondence on the file;
• s 137 permits a landlord to issue a one-month Notice To End Tenancy under RTA s 47 for “a repeated or continuing contravention of a reasonable and significant bylaw or rule by a tenant”; and
• s 138 permits the strata corporation to issue a one month Notice To End Tenancy under RTA s 47 for “a repeated or continuing contravention of a reasonable and significant bylaw or rule… that seriously interferes with another person’s use and enjoyment of a strata lot, the common property or the common assets”.
• NOTE: As a practical matter, it may be difficult for a Strata Corporation to evict a tenant, despite ss. 137-138 because the Residential Tenancy Branch has been unwilling to recognize a Strata as a “Landlord” as defined in the RTA.
Part 8 of the SPA governs “rentals” (ss. 139-148):
• s 141 permits a strata corporation to pass a bylaw restricting rentals by prohibiting rentals entirely, limiting the number or percentage of units that may be rented, or limiting the period of time for which units may be rented (i.e. requiring fixed term tenancies).
• Other than the above points, a strata corporation is not permitted to regulate, restrict, or otherwise interfere with the rental of strata property in any way.
• s 142 provides that “restrictions” do not apply to prevent rental of a unit to a member of the owner’s family, “family” is defined in the Regulations, s 8.1.
• s 143 (1) states that any bylaw that restricts or prohibits strata rentals would not take effect on existing tenants. The bylaw would not apply on that particular lot until either a year after the tenancy has ended or a year after the bylaw takes effect, whichever is later.
• s 144 permits an owner to apply for exemption from a rent restriction bylaw in cases causing hardship to the owner. “Hardship” is not defined and will depend on the facts of the case. Mere financial difficulty is often not enough.
• s 145 provides that if a tenant is renting without knowledge of a rental restriction bylaw, the tenant has not contravened the bylaw and may end the tenancy agreement without penalty by giving notice to the landlord within 90 days of finding out about the bylaw. Also, the tenant can claim reasonable moving expenses in such a situation to a maximum value of one month’s rent. However, there is no corresponding section in the RTA, and the right to tenancy MUST come from the RTA. Tenants cannot solely rely on SPA s 145 to end a tenancy.
• s 146 puts the responsibility on the landlord to provide a copy of a Form K to a tenant to sign, and to provide a copy of the Form, once signed, to the strata corporation. Tenants are bound by the bylaws and rules of the strata whether or not they are provided with one. A landlord must provide a Form K to the tenant, and they can also force the tenant to sign it. It is important the tenant reads the bylaws before signing, as the tenants are bound by the rules and bylaws, and can be held liable for any contraventions
• s 146(3)(b) and (4) purport to allow a tenant to end a tenancy and claim reasonable moving expenses if the landlord does not provide a Form K, but there is no corresponding section in the RTA, so tenants likely cannot rely upon this as a means for ending a tenancy.
• s 147 allows an owner to assign to a tenant some or all the powers and duties of a landlord under the Strata Property Act, with the exception of the landlord’s responsibility for fines and costs of remedying a contravention of the bylaw (as per SPA s 131).
• This must be done in writing and copied to the strata corporation;
• s 148 defines a “long term lease” as a lease for a set term of three years or more. Such a lease confers the powers and duties of the landlord onto the tenant for the term of the lease, with the exception of the landlord’s responsibility to pay fines as per SPA s 131. The landlord must not deal with his or her interest in the strata lot during a long-term lease in a way that would unreasonably interfere with the rights of the tenant.
NOTE: All legislation related to strata property can be found on a single web page on https://www2.gov.bc.ca/gov/content/housing-tenancy/strata-housing/legislation-and-changes/strata-legislation#sources
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