B.C.’s Civil Resolution Tribunal has rejected the hardship claim in a strata rental dispute brought by a Vancouver woman who owned two properties.
Jane Cuthbertson co-owned a strata lot and rented it out to a non-family member between May 2021 and October 2022, tribunal vice-chair J. Garth Cambrey said in his May 1 decision.
Cuthbertson alleged harassment by the strata because it did not allow their hardship exemption under the Strata Property Act and the strata’s rental bylaw. She said she was forced to sell the unit as a result.
Cuthbertson sought an order that the strata pay them $24,795, which she said were her costs associated with the sale of the unit. However, the strata said it denied Cuthbertson’s rental bylaw exemption request because she failed to provide convincing evidence of hardship.
“It denies harassing Ms. Cuthbertson,” Cambrey said.
In November 2017, Cuthbertson was granted an exemption but did not rent out the unit at that time.
In May 2021, she presented her approved hardship exemption to the current strata council and requested permission to rent out the unit. The strata council granted her a one-year hardship exemption, expiring May 2022.
The tribunal said Cuthbertson requested a further exemption in May 2022.
“I find it is this denial that forms the subject of this dispute,” Cambrey said.
Cambrey said the strata had requested financial information to assist it in determining hardship but said it received insufficient information.
“In a June 16, 2022 email to Ms. Cuthbertson, the strata council found Ms. Cuthbertson’s claim that they ‘just break even’ financially, did not prove hardship, based on the financial information provided,” Cambrey said.
The strata further told the tribunal that Cuthbertson’s financial challenges appeared to result from paying mortgages on two properties since May 2021, the time she was given a one-year exemption from the rental bylaw.
As such, the strata said it rejected the hardship request and gave Cuthbertson three months to end the tenancy before it began fining.
The same day, Cuthbertson said the second home purchased “was cheaper than rent.”
Cuthbertson also said the second home was “accessible for their brother and mother” and one which her family members could move into when Cuthbertson decided to move “back to Vancouver.”
In addition to financial information, Cuthbertson provided an undated letter from her 83-year-old mother claiming she was a caregiver to Cuthbertson’s disabled brother and, because of her age and health, required Cuthbertson’s support.
However, Cambrey said, it was not explained how the letter supported her hardship exemption request.
“While the letter identifies that Ms. Cuthbertson may provide support for their mother and brother, I do not see how such an argument applies to their rental exemption request,” Cambrey said.
He said the facts before him showed Cuthbertson had no problem selling the unit at a price far greater than the purchase price and had a second home as an asset.
“I find these factors weigh in favour of the strata’s finding that no hardship existed,” Cambrey said in dismissing the claim.
The previous claim
This isn’t the first time Cuthbertson and the strata have been before the tribunal regarding the rental exemption.
In a July 2019 decision, tribunal member Kate Campbell sided with Cuthbertson in a dispute where the strata claimed she rented out her strata lot on a short-term, hotel-type basis, contrary to the strata’s bylaws. In that case, the strata sought an order she pay $2,100 in bylaw fines.
That decision notes the 2017 hardship exemption letter from the strata.
“The letter contains no time limit on that exemption,” Campbell said. “On May 7, 2018, the owner and another individual were issued a business licence by the City of Vancouver.”
By the fall of 2018, the strata was sending notices of complaint and bylaw fine demand letters.
Campbell found Cuthbertson had breached the bylaw that prohibited operating a short-term rental business in her strata lot. However, Campbell found the strata did not follow proper procedure on the $1,600 fine and disallowed it.
Campbell further said Cuthbertson was not required to submit a rental notice to the strata because the licences to occupy were not applicable to rentals. As such, Campbell disallowed a $500 fine.