Keeping Cool in Strata and Rental Properties
Alex J. Chang, Associate
Phone: 604-685-1255
Email: ajc@lmlaw.ca
Many British Columbians are not used to thinking of cooling as a necessity in their homes in the same way that we think of heating. However, after the heat dome of 2021 and climate change causing more extreme weather events, we may already be seeing the beginning of a shift in the housing industry.
The B.C. Coroners Service report, Extreme Heat and Human Mortality: A Review of Heat-Related Deaths in B.C. in Summer 2021, concluded that 619 deaths were heat-related. The report notes that 98% of those deaths occurred indoors and were most often in homes without adequate cooling systems such as air conditioners and fans.
As resident expectations and housing building standards change, so to may the scope of the duty of landlords and strata corporations to provide, allow or maintain cooling systems.
Cooling Systems in Strata Corporations
Whether a strata corporation must maintain an existing cooling system under s. 72 of the Strata Property Act or its bylaws can be a complicated question depending on the nature of the system, its location, the bylaws, or any agreements with the owners. If the cooling system is common property, then it will often be the strata corporation’s responsibility to maintain but determining what is common property can be difficult and often requires legal advice.
Strata corporations that want to make their communities more resilient to heat events are beginning to explore options for new common cooling systems. This may involve major projects that require legal or engineering advice. Other strata corporations may consider allowing the installation of air conditioners or heat pumps by individual owners into their strata lots. Since such installations often require alterations to common property and strata corporations may want to consider amending their bylaws to set reasonable standards for such installations.
Other strata corporations may have bylaw restrictions that may prohibit or require permission from the strata corporation to hang the vents of temporary air conditioners out of windows or to conduct the alterations required to install cooling systems. These restrictions are often based on concerns about aesthetics, maintaining the building envelope or setting a precedent for similar requests. Depending on the bylaws, strata corporations may have broad authority to block the installation of individual cooling systems.
However, even that broad discretion is not limitless (see Rasmussen v. The Owners, Strata Plan VIS 1611, 2022 BCCRT 711 at 25). For example, given the health impact that high temperatures can have on the elderly and those with chronic conditions, strata corporations must be mindful about whether their refusal to allow cooling systems may violate the Human Rights Code.
Human rights cases about cooling systems in strata lots were being brought to the Human Rights Tribunal (HRT) even before 2021. For example, in the case of Macario v. Strata Plan BCS1296, 2017 BCHRT 255, the HRT dismissed an application by a strata corporation to summarily dismiss a claim by an owner that she suffered from medical conditions aggravated by heat and that the strata corporation breached the Code by not allowing her to install air conditioning. The Tribunal also found in Shannon v. The Owners, Strata Plan KAS 1613 (No. 2), 2009 BCHRT 438 that a strata corporation breached the Code by refusing to allow an owner to install a solar screen when the existing cooling systems aggravated their medical condition. The HRT awarded damages to the owner and ordered the strata to allow him to reinstall his solar screen.
The Coroner’s report noted that most of the heat deaths in 2021 were older adults with compromised health due to chronic diseases. As the connection between cooling systems and health conditions increases in the public consciousness, more claims in the HRT or Civil Resolution Tribunal may be expected. Owners and tenants may also seek remedies if the decision to refuse cooling systems meets the legal test for significant unfairness.
It is also possible that as building standards change, the scope of the strata’s duty to repair may change. The Coroner’s report noted that “As building codes are revised they will need to reflect the latest climate science and consider cooling needs.” Time will tell if this leads to an expansion of strata corporations’ duty to repair in respect of cooling systems.
Cooling Systems in Rental Units
For existing cooling systems in rental units, s. 27(1) of the Residential Tenancy Act (RTA) says that a service or facility must not be terminated by the landlord if it “is essential to the tenant’s use of the rental unit as living accommodation.” Cooling systems provided by the landlord would likely meet the definition of a “service or facility” under this section. During a heat wave, it is more likely that the Residential Tenancy Branch would find that the cooling system is essential under s. 27.
Even when not essential or a material term of a tenancy agreement, s. 27(2) of the RTA says that a tenant must still get notice and compensation for terminating cooling services or facilities that were included in the tenancy without 30 days’ notice and compensation.
Landlords must also provide for the quiet enjoyment of the rental unit and to repair and maintain it under ss. 28 and 32 of the RTA. Just as a landlord may traditionally be held liable for not providing adequate heat in the winter, it is possible that the Residential Tenancy Branch may find a landlord liable for not providing adequate cooling or maintaining existing cooling systems if high temperatures make the rental unit unsuitable for occupancy.
As with strata corporations, the scope of these duties on landlords may change as provincial and local governments adopt standards for cooling in residential housing.
WHAT WE DO: Lesperance Mendes has a dedicated team of strata and tenancy lawyers. To inquire, please contact Alex J. Chang.
THIS ARTICLE IS NOT LEGAL ADVICE: This article provides general information and should not be relied upon without independent legal advice with respect to the specific facts of your case.