Van Hartevelt v. Grewal, 2013 BCSC 971
Although not a strata property law case, this recent judicial review of an eviction order under the Residential Tenancy Act gives some guidance for evicting unruly tenants under the Strata Property Act.
Section 138 of the Strata Property Act allows a strata corporation to evict a landlord’s tenant for a “…repeated or continuing contravention of a reasonable and significant bylaw or rule … that seriously interferes with another person’s use and enjoyment of a strata lot, the common property or the common assets. In those circumstances, the strata corporation may apply under s. 47 of the Residential Tenancy Act to evict the tenant. Whether that application can be brought through the Residential Tenancy Branch is a topic for another day.
In Van Hartevelt, there was evidence to show that the tenant played loud music every evening from approximately 6:00 p.m. to 11:00 p.m. In comparison to some of the noise cases we have dealt with, this tenant was a bit of a lightweight. When neighbors approached the tenant about the noise he responded aggressively, or simply ignored their complaints. There was also evidence from other tenants that the noise was disturbing enough to interfere with sleep. Some people even avoided being home during those periods.
The key words in Section 138 of the Strata Property Act are “repeated or continuing”… “reasonable and significant bylaw” and “seriously interferes”. Although we don’t have the complete record of the evidence before the RTB in this case, the BCSC did not require much to dismiss the tenants’ application for judicial review.
When dealing with noisy owners and tenants, the steps are always the same. The council must investigate the complaints and follow the procedure under s. 135 of the Strata Property Act before enforcing the bylaws. If the owner or tenant does not respond to the enforcement options, the next step is court action. In the case of tenants, the Van Hartevelt case suggests the threshold of evidence required for an eviction will be low.
Complainants and others affected by the noise should keep a log of the noise, including the dates, times and duration of the noise. Those logs will be crucial evidence that can be used by a Dispute Resolution Officer or the Court to order an eviction of the tenant.
WHAT WE DO: Lesperance Mendes advises owners, strata corporations and property managers on bylaw enforcement issues, including noise complaints. To learn more about our strata property law legal services, please contact Paul G. Mendes at 604-685-4894 or pgm@lmlaw.ca, or visit our website: WWW.LMLAW.CA.
Lesperance Mendes Lawyers
900 Howe St #550, Vancouver, BC V6Z 2M4
(604) 685-3567