02/21/2019 – Jurisdiction British Columbia
Part 65 published on 01/03/2019
Appeal Dismissed. Court of Appeal upholds strata corporation’s rental restriction by-law.
The strata corporation had passed a by-law that restricted occupancies, including a prohibition of short-term occupancies (less than 180 days in duration). The tenant of one of the strata lots had been granting short-term licenses of the strata lot to the tenant’s clients. That tenant challenged the by-law (as being in contravention of Section 143 of the Strata Property Act). The lower Court upheld the by-law. [See Condo Cases Across Canada, Part 59, September 2017.]
The owner appealed and the Court of Appeal dismissed the appeal. The Court of Appeal said:
Section 143 establishes a grace period of at least one year before a rental restriction bylaw applies to a residential strata lot regardless of whether an existing tenancy is in place, providing the owner with a reasonable period in which to adjust previously-held expectations based on a Rental Disclosure Statement or existing bylaws. However, where an owner has no relevant previously-held expectation, there is no grace period and a rental restriction bylaw applies to a strata lot immediately (s. 143(4)). In addition, s. 142 limits the scope of permissible rental restriction bylaws by providing that they cannot prevent an owner from renting to a family member and s. 144 enables an owner to apply for an exemption on the grounds that a rental restriction bylaw causes the owner hardship.
…
The words “occupying” and “ceases to occupy” in s. 143 are used here in a provision which establishes a reasonable grace period before a valid rental restriction bylaw passed by the collective membership of a strata corporation applies to an individually-owned residential strata lot. In this context, in my view, they must mean physical occupation by a tenant, whether that tenant is a corporation or a natural person. If it were otherwise, an individual owner could defeat the collective will of the strata membership by renting a residential unit to a non-resident tenant who would be free for an indefinite period thereafter to ignore duly passed rental restrictions applicable to other strata lots in the development. In my view, such an interpretation would undermine the carefully calibrated balance of individual and collective rights established by the SPA and defeat the intention of the legislature. It is not required by the plain meaning of the words in s. 143 and, in any event, would produce an absurd result.
As noted, Bylaw 46.5 is, at least in part, a rental restriction bylaw. HighStreet, as the tenant, did not physically occupy the Strata Lot when it was passed, nor did any other tenant. Therefore, Bylaw 46.5 applied to the Strata Lot one year later. It follows that HighStreet is subject to its terms.
HighStreet Accommodations Ltd. v. The Owners, Strata Plan BCS2478, 2019 BCCA 64