Strata caught off guard by changes to eviction process

What does a landlord do if a tenant is throwing wild parties or terrorizing the neighbours?

B.C. landlords can issue an eviction notice and, if that doesn’t work, they can apply for an Order of Possession from the Residential Tenancy Branch of the ministry responsible for housing.

It’s a relatively easy procedure, usually done by teleconference.

According to one Vancouver lawyer, that’s been the case whether the action was initiated by the legal landlord or a strata corporation acting as such -because the landlord was unaware of a problem or unwilling to do anything about it.

But late last year, Jamie Bleay of Access Law Group learned that something had changed.

A strata corporation came to him for assistance applying for an Order of Possession after trying to evict a tenant who was hosting noisy parties and dealing drugs.

When Bleay applied for the order, he was told the strata corporation didn’t have the authority to terminate a tenancy and its notice of eviction wasn’t valid. His application was dismissed.

Bleay estimates he’s successfully obtained Orders of Possession a dozen or so times over the years in the same circumstances, based on Section 138 of the Strata Property Act.

It says a strata corporation can terminate a tenancy agreement when a tenant repeatedly contravenes a reasonable and significant bylaw and seriously interferes with another resident’s use of their strata or common property.

So what gives? According to housing ministry spokesman Jake Jacobs, the ministry was advised that strata corporations aren’t landlords under the Residential Tenancy Act because they don’t enter into tenancy agreements.

In that case, Bleay urges, amend the Act to include strata corporations.

But Jacobs says it’s not that simple.

“These are privately owned units and there are a number of factors that need to be considered. For example, there are occasions -such as renting to family members -where the typical landlord relationship does not exist.”

So now, the ministry suggests strata corporations use another section of the Strata Property Act – Section 173 – and apply to the B.C. Supreme Court for eviction orders.

But instead of being able to quickly and inexpensively state its case before an adjudicator, a strata corporation will now have to come up with enough money to go to court.

Bleay estimates it’ll cost between $5,000 and $10,000 to evict someone under Section 173 (though to his knowledge it’s never been done) compared to between $300 and $500 under Section 138.

If successful, a strata corporation may recover half or more of its legal fees, unless the tenant makes “a midnight move,” in which case Bleay says the corporation will be left holding the bag.

And most, strata corporations don’t keep that kind of money on hand, so it will mean calling a meeting and getting approval of three quarters of the owners, which may or may not happen.

“Why use a cannon when you can use a fly swatter?” Bleay wonders.

Jacobs says the ministry is continuing to look at other options for strata corporations and points out they can still pass bylaws and fine tenants who break them.

But Bleay thinks the ministry’s legal opinion is flawed and it should give strata corporations back the tools they need to evict troublesome tenants.

“In the overall scheme of things, it’s not a huge deal, but it kind of sticks in my craw because it’s a policy decision by the Residential Tenancy Branch . I don’t know why, but I don’t think it’s up to them to make these decisions.”