Given the haste with which the provincial government adopted a recent amendment to the Strata Property Act (“SPA”) to ban rental restriction bylaws, most of the immediate public reaction focused on the anticipated effects these amendments would have on British Columbia’s overpriced housing and overheated rental markets. However, an interesting consequence of this amendment was not actually contained in the statutory amendment itself, but rather, in an update that the Residential Tenancy Branch (“RTB”) made to one of its policy guidelines regarding dispute resolution.
The RTB’s growing jurisdiction
The SPA has, since its inception, given strata corporations the authority to issue a notice to end tenancy to a tenant of a residential strata lot 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. However, the application of this section of the SPA has been mired in practical impediments thus far.
A review of several past RTB decisions highlights that while the SPA clearly lays out a strata corporation’s authority to issue a notice to end tenancy, the RTB has been reluctant to assume jurisdiction of any such matters. When strata corporations would apply to the RTB for an order of possession, the RTB would routinely dismiss the application on the basis that the definition of “landlord” under the Residential Tenancy Act (“RTA”) does not include a strata corporation, and therefore, a strata corporation is not entitled to an order of possession from the RTB due to lack of jurisdiction.
However, the provincial government’s recent move to prohibit rental restriction bylaws will invariably have the effect of increasing the number of tenants in residential strata lots- particularly in developments that have previously either prohibited rentals or restricted the number of permitted rentals. This puts strata councils in an unenviable position as they deal with more bylaw enforcement issues involving tenanted units.
In what we can only assume is a recognition of this likely outcome, the Residential Tenancy Branch has updated its policy guideline on jurisdiction to include a specific section related to RTB disputes involving strata corporations:
“The definition of “landlord” in the RTA sets out what that term “includes” in relation to a rental unit. The definition can also include persons who are not listed. Thus, it can include a person to whom the Legislature has given the powers of a landlord in another statute, such as the Strata Property Act. The strata corporation can be a landlord under the RTA but only for the purposes of issuing a notice to end tenancy under section 47 of the RTA, defending any application disputing that notice, and seeking an order and writ of possession in relation to that notice.”
This wording clearly flies in the face of several previous RTB decisions that have found that the RTB did not have jurisdiction in such matters and, in this writer’s view, is a welcome change that should finally give effect to section 138 of the SPA. However, with this jurisdictional debate now ostensibly resolved, it remains to be seen whether the RTB will create a new approved form for use by strata corporations when it seeks to issue a notice to end tenancy to a tenant of a residential strata lot. As the Court of Appeal in Sullivan v. Strata Plan BCS-251, 2005 BCCA 342 remarks, the current approved form used by landlords to issue a 1-month notice to end tenancy contains “many provisions irrelevant to tenancies ended under the Strata Property Act” and therefore must be “very confusing to both strata corporations and tenants”.
Strata Councils navigating the Residential Tenancy Branch
Just as many strata councils have become familiar with dispute resolution before the Civil Resolution Tribunal (“CRT”), it looks like strata councils may now have to familiarize themselves with yet another administrative tribunal, the RTB.
To date, the most common legal mechanism in resolving strata disputes involving a tenant in breach of a strata corporation’s bylaws is levying fines against the offending tenant as contemplated by section 135 of the SPA. Moreover, if the strata council follows the required procedures in administering such fines, the SPA allows a strata corporation to hold a landlord responsible for some or all the fines or costs levied against the tenant by the strata corporation. This will often have the effect of shifting the landlord’s cost-benefit analysis regarding the tenanted property and may result in the landlord ultimately issuing their own notice to end tenancy to their tenant.
However, in circumstances where a landlord fails to act or where fines are simply an insufficient deterrent, until recently, the next level of intervention for a strata corporation was to file a claim with the CRT to seek an injunction against the tenant for an order that the tenant comply with the strata corporation’s bylaws. With the RTB’s updated policy guideline, strata councils must now consider whether it would be more efficient to step into the shoes of the landlord and issue a notice to end tenancy, with the matter likely to be heard by the RTB.
While many landlords across British Columbia may already be familiar with the RTB, it is unlikely that many strata councils will have knowledge about this administrative tribunal. The RTB has exclusive jurisdiction over residential tenancy matters referenced in its enabling legislation. Like the CRT, the RTB’s dispute resolution application and evidence-submission process is primarily online although an RTB application and accompanying evidence can also be filed in person at the RTB’s office in Burnaby and at any Service BC office. Unlike the CRT though, the RTB will convene a teleconference hearing involving the relevant parties, their witnesses (if any) and an RTB arbitrator. Such telephone hearings will typically be only one hour in duration and will lead to a legally binding decision.
Notably, unlike the CRT, the RTB regularly allows for lawyers to represent their clients throughout the dispute resolution process. In short, this means that a strata council who is dealing with a problematic tenant in a residential strata lot would be wise to contact a lawyer who has experience both with strata bylaw enforcement as well as RTB dispute resolution hearings.