In Tran v. The Owners, Strata Plan 1667, 2018 BCCRT 669 the CRT said the following:
12. The parties agree that the owner has, at various times, rented her spare bedroom to 1 or 2 roommates.
13. The strata says that all rentals, including rental to roommates sharing with the strata lot owner, are prohibited under its bylaws. The strata cites bylaw 42, “Rental Restrictions”, which states as follows:
(1) Let it be known that all strata lots of Strata Plan 1667 be Owner occupied,
(2) the only exception will be in the case of hardship. At this time the above-mentioned will be put to the Strata Council for consideration. The application will not be unreasonably withheld.
14. The owner says she is entitled to rent her spare bedroom to roommates regardless of the strata’s bylaws. She says that section 141 of the Strata Property Act (SPA) only allows the strata to restrict the rental of the entire strata lot, and that a strata cannot restrict rentals to roommates who share the strata lot with the owner.
15. I find that the strata’s bylaws prohibit all rentals, including rentals to roommates. In Wong v. Section 1 of The Owners, Strata Plan N.W. 2320 et al, 2017 BCCRT 25, a tribunal vice chair found that because section 1 of the SPA clearly defines “tenant” as a person who “rents all or part of a strata lot”, that strata’s rental restriction bylaw prohibited roommates sharing a strata lot with an owner, and did not just apply to rentals of an entire strata lot (paragraph 55). Similarly, in K.M. v. The Owners, Strata Plan ABC XXXX, 2018 BCCRT 29. In K.M., another tribunal vice chair found in paragraphs 39 to 46 that the strata’s rental restriction bylaws applied equally to roommates as to those renting an entire strata lot.
16. Although Wong and K.M. are not binding precedents, I find their reasoning persuasive, and I rely on them. In applying that reasoning to the facts in this dispute, I conclude that the strata’s rental restriction bylaw, bylaw 42(1), prohibits the owner from renting any portion of her strata lot to roommates. As in Wong and K.M., I make this finding particularly because “tenant” is defined in section 1 of the SPA as a person who rents all or part of a strata lot.
17. The owner is therefore not permitted, under the strata’s bylaw 42(1), to rent any portion of her strata lot to roommates.
However, the law recognizes a difference between tenancies and other types of relationships whereby one might be permitted to stay in a strata lot. In The Owners Strata Plan VR2213 v. Duncan & Owen, 2010 BCPC 123 the court held that individuals paying for and staying in a furnished strata lot for a week or two at a time were not tenants and did not need to file a Form K. A similar decision was reached in HighStreet Accommodations Ltd. v The Owners, Strata Plan BCS2478, 2017 BCSC 1039.
While the Strata Property Act (SPA) defines “tenant” as “ a person who rents all or part of a strata lot, and includes a subtenant…”, it does not define what “rent” is. The Residential Tenancy Act (RTA) defines “rent” as “money paid or agreed to be paid, or value or a right given or agreed to be given, by or on behalf of a tenant to a landlord in return for the right to possess a rental unit.” Although that definition refers to “money paid”, in Jay v The Owners Strata Plan NW 3353, 2018 BCSC 780 affirmed 2019 BCCA 102 the court held that the occasional payment of strata fees and special levies did not make a person a tenant. There must be a more formal arrangement for payment in order for there to be a tenancy.
In Semmler v The Owners, Strata Plan NES3039, 2018 BCSC 2064 the court said the following:
[50] I find that the words rent or rental as used in Part 8 of the Strata Property Act must have a consistent meaning within that Part. Given that the sections of the Act which I have identified above clearly use the words “rent” and “rental” in the context of the creation of a tenancy, I find that, within the meaning of the Strata Property Act, the words “rent” and “rental” do not apply to licenses. Rather, the word rental must be read as describing an intention to create a tenancy. (emphasis added)
In addition, the RTA excludes “living accommodation in which the tenant shares bathroom or kitchen facilities with the owner of that accommodation”. That provision alone would appear to exclude roommates from any type of tenancy arrangement.
If roommate relationships are not tenancies, then they are licenses. As a result, a rental restriction bylaw would not apply to such a relationship. The CRT’s decision in Tran can be distinguished on that basis.
Where such a relationship exists and is not caught by a rental restriction bylaw, it might still be caught by another bylaw such as a prohibition on using a strata lot for short term accommodation or license arrangements, or even a single family use bylaw.
Treating roommates as tenants can have unintended consequences. People, who the other owners might be comfortable having in a strata lot, could be prevented from living in the strata lot. For example, the family rental exemption provided for in s.142 of the SPA does not apply to siblings or cousins, who might well share a strata lot with it owner. Doing so could also mean that a boyfriend or girlfriend moving in with an owner would result in breach of the bylaw. A person is not a “spouse” until they have cohabited for 2 years in a marriage-like relationship.
Strata corporations may wish to address this topic in their bylaws and define what “renting” means for the purposes of the bylaws (keeping in mind that the definition of “tenant” cannot be changed). Doing so can be helpful in terms of knowing what is captured by the bylaw and what is not.
This article is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is lawyer whose practice focuses on strata property law. He frequently writes and lectures for strata associations. He is a partner with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or shawn@clevelanddoan.com. He can be followed on Twitter @stratashawn.
