Proposed daycare sparks dispute between residential tenants and landlord

The laughs and cries of children playing is the source of a dispute between tenants of a downtown rental building and their landlord.

Some tenants of a 134-unit purpose-built rental building on the corner of Cook Street and Pandora Avenue are upset that a new daycare, set to open next month, will take over some of their common space during weekdays and are worried about the noise of children playing on playgrounds. The landlord says the daycare is part of his goal of creating a family-friendly rental building in a city where new child-care spaces are desperately needed.

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A recent residential tenancy board decision was split down the middle, finding that sharing the common space does not impinge on the tenants’ ability to live in their suite, but that the landlord did not give proper notice or a rent reduction to the tenants about the new restrictions to the common areas.

Danica Jeffery and her five-year-old son have lived in a two-bedroom apartment at 1488 Cook St. for two years, drawn by the fact that the 13-storey building is pet-friendly and has a large sun deck on the 11th floor and a playground just steps away. Jeffery pays $2,100-a-month in rent for a second-floor apartment.

Jeffery said she’s fine that a daycare has moved into the building’s 4,400-square foot commercial space on the ground floor, but she’s upset that, for six hours a day Monday to Friday, kids will be playing on equipment that takes up a large chunk of the second floor and 11th- floor common patio spaces. “It’s 100 per cent unnecessary that [the daycare] has use of residential common areas,” she said.

Jeffery, a communications specialist in her early 40s, works from home. She worries that when groups of kids are in the playground, she’ll have to keep her windows closed and blinds drawn to get peace and privacy.

“It will be a constant stream of fresh lungs, yelling and laughing, and that’s great, but not right outside my home,” she said. Maple Tree Children’s Centre, which signed a 10-year lease for the 76-space daycare, was expected to open in July, but its opening has been delayed to September. The daycare operator could not be reached to comment on whether the delay in opening the doors was due to the residential tenancy dispute, but the landlord says that’s the case.

Mands Burnette, who lives on the second floor with her husband, Andrew Poucher, and their six-year-old son, Arlo, said she’s upset by the lack of consultation with tenants about the daycare.

During parent tours of the daycare and construction of new fencing, there was a steady stream of people passing by her patio windows, taking away her privacy, she said.

“We’re all reasonable people, we all get it, I don’t think anyone has a problem with the daycare occupying the commercial space,” said Burnette, 36. “It’s good that Victoria is having more daycare spaces, but I don’t think using the residential spaces is good for anybody.”

Both tenants say they’re in the dark about the daycare’s COVID-19 safety practices, such as where parents will pick up and drop off, and whether they will use the elevators.

Landlord Steven Cox of Cox Developments said he did not anticipate the backlash to renting the ground-floor commercial space to a daycare or letting the daycare use the second- and 11th-floor common spaces as play areas. “I love families. I love kids laughing. To me that’s the most beautiful sound in the world. So it kind of shocked me that young people would be so concerned,” he said.

Standing next to the building’s giant chalkboard where tenants can leave messages and kids can doodle, Cox said he wanted to design a rental building focused on families. He estimates there are 30 kids living in the building.

Cox said the people living closest to the play areas have a “legitimate beef,” but he’s asking tenants to wait until the daycare opens to make a judgment on noise. “I don’t think a bunch of four-year-olds will be that noisy,” said Cox, noting he had three boys who are now adults.

A daycare is zoned for residential use, not commercial use, so it has just as much right to the common spaces as other tenants, Cox said. He said prior to leasing to the daycare, the common spaces were hardly used by tenants. Cox has plans to add an outdoor barbecue and more seating to the patio areas so, he said, the common areas will be enhanced, not diminished.

Burnette and five other tenants filed a dispute with the Residential Tenancy Branch, arguing that they weren’t given proper notice about the daycare and that they should be given a rent reduction for losing access to common spaces when the daycare is in operation.

Burnette surveyed tenants about the daycare and said of 44 who replied, a majority expressed concerns about potential noise and lack of consultation.

According to the Residential Tenancy Act, a landlord may restrict a service such as a common area as long as they give 30 days’ written notice and reduce the rent in an amount equivalent to the reduction in value of losing such service. In a July 30 decision, the arbitrator found that the tenants continue to have access to the common spaces when they’re not being used by the daycare.

“I find that the landlord’s restriction on the tenants’ access to these common areas does not make it impossible or impractical for the tenants to use their rental units as a living accommodation,” the arbitrator wrote. “Should the landlord wish to continue with their intent to restrict the facilities, they are still required to ensure that the tenants’ right to quiet enjoyment is not impacted.”

The arbitrator found that the landlord’s written notice on June 3 about the daycare was not given on the approved form. Cox reissued the notice form at the end of July and gave tenants a rent reduction of between $15 and $30 a month depending on how close they are to the playground.

Cox said he has tried to accommodate any tenants who are upset, offering to move them to another unit farther away from the play areas. He offered to cover the moving costs and the tenant’s rent would remain the same even if the unit was slightly more expensive.

Burnette said she declined the offer to move to another suite because she would have to sign a 13-month lease. She’s now on a month-to-month lease which allows her to move if the noise from the daycare is too much.

Jeffery said as a single mother, she can’t afford to move to another building if the daycare proves too disruptive. “I just feel like my hands are tied and I just have to sit down and suffer.”

Cox has urged tenants to be patient and said if there are any issues after the daycare opens, he will address them. “I honestly don’t think anyone is going to be hurt by it. I hope this building gets a reputation of being a family-friendly building.”

Burnette and Jeffery both expect they’ll be back before the Residential Tenancy Branch again if their fears around noise are realized.

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