Strata Alert: Evicting a Troublesome Tenant under the Strata Property Act

 
Evicting a Troublesome Tenant under the Strata Property Act

Paul G. Mendes, Partner
Phone:  604-685-4894
Email:  PGM@LMLAW.CA

 

 

Sections 137 and 138 of the Strata Property Act permit a strata lot owner or a strata corporation to evict the tenant of a strata lot for a “repeated or continuing contravention of a reasonable and significant bylaw or rule”.

Landlord’s may rely on section 137 to issue a notice to end tenancy and apply for an order for possession to the Residential Tenancy Branch. Strata Corporations can rely on section 138 to end a tenancy, but they can only do so by way of an application to the Supreme Court or possibly the Civil Resolutions Tribunal.

There are no reported decisions in British Columbia ordering the eviction of a tenant on an application by a strata corporation. Accordingly, how a court might approach a “strata Corporation eviction” under section 138 is unclear.

A recent decision from Ontario, however, provides some insight as to how such an application may play out in BC.

In NNCC No. 6 v. Temedio, a condominium corporation applied for an order to evict a tenant who was causing excessive noise. The evidence showed that the tenant, who was the owner’s disabled adult grandson, suffered from a mental illness. After sending various warning letters to the unit owner, and placing a lien on the strata lot for bylaw enforcement expenses, the condominium corporation applied to the Court for an order to evict the tenant.

Although the Court found that the tenant had contravened the bylaws (called Rules in Ontario), it refused to order an eviction. The Court relied on an earlier decision which described “forced sale proceedings” under the Ontario Condominium Act as a “draconian remedy”. The Court concluded that evicting a tenant in the circumstances of this case, was likewise a draconian remedy. The judge decided instead to grant an injunction requiring the unit owner and the tenant to comply with the bylaws.

Although the decision in NNCC No. 6 v. Temedio is not binding on a BC Court, it will be persuasive. A strata corporation bringing an application to evict a tenant under section 138 of the Strata Property Act would be wise to also bring an application for relief under section 173. Section 173 is the section that allows the court to make an order forcing an owner or tenant to comply with the Strata Property Act, or the strata corporation’s Bylaws or Rules.

The strata corporation in LMS 2768 v. Jordison, 2013 BCCA 484 relied on section 173 to evict a unit owner whose son was unable to abide by previous court orders and injunctions made under section 173.  The BC Court Of Appeal held that once a Court grants an injunction restraining the behaviour of an owner, evicting the owner is possible under section 173 (c) if the owner fails to abide by the injunction.  I like to call this the “eviction two-step”, because it requires a two-step procedure for evicting an owner:

  1. obtain an injunction against the owner or tenant;
  2. apply to evict the owner or tenant for breaching the injunction.

The decision in NNCC No. 6 v. Temedio suggests that an “eviction two-step” might also be required when a strata applies to evict a tenant.

WHAT WE DO:  Lesperance Mendes advises Strata Corporation and Owners on Legal Matters Relating to Construction Defects, Warranty Claims, bylaw enforcement and collections. We have successfully obtained injunctions and significant fines against troublesome owners. For more information about how we can help you deal with a troublesome bylaw enforcement issue, contact Paul G Mendes, partner at 604-685-4894 or by email at PGM@LMLAW.CA.

 

THIS ARTICLE IS NOT LEGAL ADVICE:  This article provides general information and should not be relied on without independent legal advice.