Blue Monday for Stratas
Paul G. Mendes, Partner
Phone: 604-685-4894
Email: pgm@lmlaw.ca
“I thought I was mistaken
I thought I heard your words
Tell me how do I feel
Tell me now, how do I feel.”
Lyrics to Blue Monday, written by Gillian Gilbert, Peter Hook, Stephen Morris, Bernard Sumner.
Blue Monday is not just one of the greatest EDM songs of all time, it is also the name given to a day in January, which is supposed to be the most depressing day of the year. It turns out, however, this was little more than the marketing scheme of a travel company.
But there is a real Blue Monday in January for stratas.
That’s the first Monday in January when the strata opens the holiday mail to discover a rental hardship request under section 144. If a strata has a rental restriction bylaw, s. 144 allows an owner to apply for an exemption from the bylaw if the bylaw is causing a hardship for the owner.
Section 144 imposes tight timelines on a strata to respond to such requests, and section 144 (4) says that the exemption is granted automatically if the strata does not respond within one week (if an owner asks for a hearing) or two weeks (if no hearing is requested).
So it should not surprise anyone to learn that December is “high season” for rental hardship exemption requests.
The theory is that with the strata manager and the council distracted by the figgy pudding and eggnog, the strata will miss the deadlines and the hardship exemption will be granted automatically regardless of its merits. Throw in a delay due to the heavy holiday mail, or postal strike, and you are almost certain to get your hardship exemption even if you do not deserve it. By the time the strata opens the holiday mail on the 1st Monday after the Christmas break, it is already too late for the strata to respond to the hardship request. Now that is a real Blue Monday right there, especially if you are in charge of the mail.
The CRT recently considered the peculiar wording of section 144 (2) and found that a particular rental hardship exemption request could be disregarded by the strata because it was not “in the proper form.”
In Gordon v. The Owners, Strata Plan LMS 2405, 2018 BCCRT 674, an owner wrote to the strata requesting a hardship exemption, but their letter failed to include a statement as to whether or not the owner wished to have a hearing.
The tribunal member observed that section 144 (2) reads as follows:
(2) The application must be in writing and must state
(a) the reason the owner thinks an exemption should be made, and
(b) whether the owner wishes a hearing. [Emphasis added]
The CRT found that the owner’s letter did not meet the requirements of s. 144(2) of the Act because it did not state whether the owner wished to have a hearing. The CRT member commented that this was a mandatory requirement of s. 144(2) and, because the owner did not include it, the owner did not submit a valid hardship application.
Most hardship applications will meet the requirement of section 144 (2) subsection (a) but not necessarily subsection (b).
So if your strata is having a Blue January because some smart-alecky owner sent their hardship request during holidays marked by a postal strike, take a closer look at that request. Your Blue Monday might be over. #TGIF.
WHAT WE DO: Lesperance Mendes has been advising strata corporations, strata managers and strata owners on strata property governance issues since 1997. If you are dealing with a bylaw enforcement issue, consider speaking to one of our experienced strata lawyers. Contact Paul G Mendes, Partner at 604-685-4894 or email Paul 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.