In this case, the owner of a strata unit, Mr. Gee, received a fine of $11,000 because his tenants used a Burnaby strata lot as an Airbnb rental, infrequently. He was charged an additional booking fee of $300, which was used by strata to book a room at Airbnb, to determine if the lot was, in fact, being rented. The main issues in this case, in my opinion, are as follows: if you rent a strata unit and your tenants rent your suite to others are you responsible? second, can a strata fine you for the actions of your tenants? and third, what duty does a strata have to you (as an owner)?
2016 – 2017
Owners of neighboring strata units, in 2016 and 2017, complained of unusual activity at the strata lot. Investigating the matter, the strata determined that the strata lot was being used as a short-term Airbnb rental. The strata neglected to inform the owner of its findings.
The strata, subsequently, amended its policiesin 2018 to prohibit the use of short-term rentals. Specifically, ByLaw 36(1)(a) states that “an owner, tenant or occupant must not use or permit to be used a residential strata lot, common property or common assets in a way that is for commercial or professional purposes or activities, including but not limited to the following: (i) short-term rentals.”
On Tuesday, September 17, 2019, the strata property manager gave the owner a letter indicating that his strata lot was being used as an Airbnb rental contrary to ByLaw 36(1)(a). The letter informed the owner that absent his reply, he would be required to pay a fine of $200 per day plus the $300 used to book a room at Airbnb to investigate the matter.
After a strata meeting, on Friday, October, 18, 2019, the strata property manager informed the owner that he would be fined $11,000 for each of 54 violations occurring since 2018 (plus the $300 booking fee). After this notice, the owner canceled the rental agreement with his tenants.
On Friday, February 21, 2020, the strata informed the owner that it was going to place a lien on his strata lot at the Land Title and Survey Authority of B.C. to recover any remaining fees and fines.
What does the Law Say?
The Strata Property Act provides that a strata may only fine an owner solely based on the requirements set out in the Act:
Under, s. 130(1) of the Act, the strata may only fine an owner if the owner breaches a bylaw, a person either admitted by or visiting the owner violates a bylaw, and if an non-renting occupant of the lot contravenes a bylaw. The requirements of s. 130 were not satisfied in this case.
Section 130(2) of Strata Property Act, however, provides that the strata may fine a tenant if a bylaw is contravened by a tenant, a person either visiting or admitted by a tenant contravenes a bylaw, or a non-sublet and nobn-subtenant occupant contravenes a bylaw. Beause the strata fined the owner instead of the tenants, s. 130(2) does not apply.
Under s. 135 of the Act, the strata must provide an owner with written notice of a complaint providing sufficient time to reply (or request a hearing). In this case, the strata did not inform the owner in 2016 and 2017 and then sought to retroactively fine the owner for contraventions that pre-date ByLaw 36(1)(a).
Finally, the Strata Property Act includes no mechanism enabling a strata to arbitrarily invoice an owner for its decision to book a room on Airbnb as part of its investigation. It would have been much easier if strata had simply discussed its concerns with the owner and tenants (verbally and in writing).
Although Mr. Gee won paying no fines or fees, the case leaves open the possibility that where a strata has bylaws that prevent short-term rentals, the owner may be responsible to pay fines for violations by Airbnb rentals by tenants. The owner escaped fines because the strata failed to follow the correct actions. Fortunately, Mr. Gee relied on the Civil Resolution Tribunal to decide his case because strata may assume powers that are not provided for in the Act. However, a strata may draft bylaws that reflect the needs of its body.
Gee v. The Owners, Strata Plan EPS2461, 2020 BCCRT 1338