Strata-lot occupant found not to be a tenant and to be ineligible for strata council
16 May 2018
By Kevin Zakreski
Jay v The Owners Strata Plan NW 3353, 2018 BCSC 780, concerned “an application to seek a determination of whether [the petitioner] is a tenant or is otherwise eligible to be an elected member of the Strata Council.” The case turned on whether the petitioner “is a tenant under the Strata Property Act, S.B.C. 1998, c. 43 [SPA] or whether there is another basis for allowing him to be a member of the Strata Council.” The court concluded that the petitioner couldn’t be considered a tenant and that there was no other basis upon which he was eligible to be a member of the strata council.
Jay involved a strata property that “consists of 127 strata lots in a condominium building situated . . . in Burnaby.” The petitioner “has been residing in Strata Lot 35 since 2009.” “Strata Lot 35,” the court found, “is owned in joint tenancy by the petitioner’s father and stepmother,” who “reside in Nelson, BC.”
The petitioner provided no evidence of a tenancy agreement. He did give affidavit evidence to the effect that he was paying rent on the premises and that he had been granted certain rights in respect of it:
The petitioner has been residing in Strata Lot 35 since 2009. The petitioner deposed that from 2009 to 2011, he paid to his parents amounts that were roughly equal to the monthly maintenance fees in exchange for living in Strata Lot 35. The petitioner deposed that from 2011 forward, he paid certain expenses related to Strata Lot 35, such as special levies, in exchange for residing in Strata Lot 35. The petitioner provided no documentary evidence regarding these payments.
In April 2009, the petitioner provided the respondent with a letter from [the petitioner’s father] appointing the petitioner as his representative with respect to all matters pertaining to Strata Lot 35 (the “letter of appointment”). This included attending meetings, voting, and standing for election to the Strata Council. The letter does not state that the petitioner is a tenant and it does not refer to a lease.
The court declined to find a tenancy relationship for three reasons:
First, there is no written evidence of a tenancy relationship as is necessary under s. 28 of the SPA. There was no evidence from the owners of Strata Lot 35 that the petitioner is in a tenancy relationship with them as required under s. 28 and ss. 147 and 148 of the SPA.
The April 2009 letter of appointment naming the petitioner as his father’s representative did not fulfil all of the requirements under s. 147 of the SPA. An assignment under s. 147 requires that the landlord provide the name of the tenant to whom the assignment is made, the powers and duties that are assigned to the tenant, and the time period during which the assignment is effective. These requirements were not met here because the letter provides no evidence that the petitioner was a tenant. Moreover, the letter regarding the assignment of rights was not executed by both registered owners of Strata Lot 35. . . .
Second, there was no notification from the owners of the strata unit to the Strata Corporation that they had rented all or part of their unit pursuant to s. 146 of the SPA. Subsequent to the petition, neither the petitioner nor the registered owners provided the Strata Corporation with a Form K Notice of Tenant’s Responsibilities. Pursuant to s. 146 of the SPA, the landlord must provide the strata corporation with a copy of such notice signed by the tenant within two weeks of the rental.
With respect to s. 148, the petitioner did not provide the Strata Corporation with written notice of the assignment indicating for how long it would be effective, and confirming that the petitioner was a tenant.
Third, the petitioner has not asserted that he paid the strata unit owners any form of regular rent since 2011. Although the petitioner deposed that he made periodic payments to the registered owners in the past and irregular payments since 2011, he tendered no written evidence of any payments. Such evidence would be easily obtainable.
The court specifically noted the deficiencies in the petitioner’s evidence as a factor in leading it to these conclusions:
The petitioner stated that the respondent’s argument is based on an overly technical application of the SPA. He further argued that tenancy agreements can be implied. If the petitioner had provided proof of payment of rent, or affidavit evidence from one of the registered owners, I might well have been satisfied that there was a tenancy arrangement in place. The petitioner had the opportunity to remedy these issues since commencing the litigation. Because he did not do so, I cannot imply a tenancy.
The court also rejected an argument based on estoppel by convention:
Although the parties did operate on an assumed statement of facts for a number of years, the petitioner has not met the second requirement to establish an estoppel. The petitioner has not proven that it would be unjust or unconscionable for the respondent to resile from its common assumption. The petitioner had an easy remedy. He simply needed to provide the Strata Corporation with concrete evidence of payment or other compensation to establish a tenancy. Alternatively, the petitioner’s father could have deposed that he is renting Strata Lot 35 to the petitioner.
In the result, the court concluded:
The petitioner’s application for an order that he be declared a tenant is dismissed. I also dismiss his request for a declaration that he has been assigned the right to stand for election to the Strata Council under s. 147 or s. 148 of the SPA. Lastly, I dismiss the petitioner’s request for a declaration that the respondent be estopped from denying that he is eligible to be a member of the Strata Council.