Condo Smarts: Confusion between rental and short-term accommodations bylaws

2012-Tony-Gioventu.jpgDear Tony: Our strata owners and council are in a battle over the application of our rental bylaws and our short-term rental enforcement.

There is obviously a record- keeping issue because the council and manager cannot or will not provide an accurate disclosure of the number of units rented, and they appear to have grandfathered a number of owners from the bylaws.

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Most owners now seem to disregard the bylaws, even though we have a limit of 10 rentals in our 110-unit mid rise, and a prohibition on short-term rentals. Council have informed owners our rental bylaws are basically unenforceable. The source of the dispute appears to be around whether anyone is grandfathered from the bylaws that prohibit Air BnB’s.

Kelly M., Kelowna

There is continued confusion between rental bylaws and short-term accommodation bylaws. Rental bylaws apply to tenancies that are greater than 30 days for residential units and subject to the limitations imposed by the bylaws, exemptions granted under the Strata Property Act ( the Act) and provisions of the Residential Tenancy Act.

Strata corporations may ratify bylaws that limit or restrict the number of rentals either by a specific number or percentage of units. This is a conventional rental bylaw and the Act sets out provisions for the administration of the bylaw and exemptions.

There are three exemptions from a rental bylaw. If the unit is rented to the parent or child of an owner or owner’s spouse that rental is exempt from the limit and count. If the owner developer filed a rental disclosure statement intending to rent strata lots, for those strata corporations filed before Jan. 1, 2010, the original purchaser is exempt from the rental limit until they sell or convey their strata lot to a subsequent owner. For those strata corporations filed from Jan. 1, 2010, the strata lots identified on the rental disclosure are exempt for the period shown on the disclosure. This exemption applies to the strata lot and does not affect ownership sequence.

The third exemption is where an owner makes an application to the strata corporation for an exemption due to a hardship.

In any of these three cases, the rental is exempt, is not included in the total count for the enforcement of the bylaw limit. However, every owner must complete and provide the strata corporation with a Form K notice of tenant’s responsibilities. This ensures the tenants are in possession of the bylaws and rules, and the strata corporation is informed of the identity of the occupants and how to contact the occupants and tenants. If a strata corporation has properly amended their bylaws, the maximum penalty that may be imposed for the enforcement of a rental bylaw is $500 per week.

Short-term accommodations are not rentals. These are bylaws that apply to business activities of short-term hotel type use of strata lots. Strata corporations may prohibit short-term accommodations and the maximum penalty permitted in a bylaw is $1,000 per day. There are no exemptions or grandfathering granted by the Act for short-term accommodations. Owner-developer rental disclosure exemptions, family use or hardship do not apply. To ensure your strata corporation can reliably enforce both types of bylaws separately, consult with your lawyer to separate rental and short accommodation bylaws.

Tony Gioventu is executive director of the Condominium Home Owners Association.

Covid-19 Notice: To prevent the spread of COVID-19, CHOA staff are working remotely and our offices are temporarily closed. We understand these are challenging times for strata corporations and we are here to help. Even though CHOA advisers are working remotely we are only a phone call or email away and able to assist you with hosting meetings and notice preparation.

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