CRT Says Hardship Exemptions not Available for AirBnB Rentals

As discussed in a previous post, the Strata Property Act (the "SPA") provides a hardship exemption from rental bylaws when those bylaws cause hardship to an owner if that owner cannot rent their strata lot. What is hardship depends on the facts and circumstances of each individual owner.

In a recent case before the Civil Resolution Tribunal, an owner argued that she should be able to rent her strata lot out on a short term basis because she would experience financial hardship otherwise.

In the case of Rutherford v The Owners, Strata Plan 170, 2019 BCCRT 531, the Strata Corporation had a bylaw that prohibited all short term rentals and all long term rentals. The owner applied to the strata for a hardship exemption and sought permission to rent out 1 room in her strata lot using AirBnB for up to 10 days a month to supplement her income. The owner claimed that she could only work part-time due to permanent disabilities, which disabilities also prevented her from having a full-time roommate.

The CRT found that:

"21. I find that the owner is not entitled to a hardship exemption because her proposed use is a license of occupancy, rather than a rental. 

 22. Section 144 of the SPA permits an owner to apply for an exemption from a rental restriction on the grounds the bylaw causes hardship to the owner. Since I have found that the owner's proposed AirBnB use is not a rental use, but is instead a license use, the provisions of section 144 do not apply. This is clearly explained in paragraph 31 of The Owners, Strata Plan BCS 3625 v Wiltsey et al, 2018 BCCRT 155.

 23. The Courts have found that the obligations and protections of Part 8 will only apply where the renter receives exclusive possession and control of the property (also known as legal possession) (HighStreet Accommodations Ltd. v. The Owners, Strata Plan BCS 2478, 2017 BCSC 10). Short-term accommodations do not typically give the guest exclusive possession and control of the property, but rather only a license to occupy the property for a specified period of time. The court has found the provisions of Part 8 do not apply to licensing arrangements. It follows that bylaws created pursuant to section 141, such as the rental limitation bylaws, will not apply to licensing arrangements. 

24.  I find the same reasoning applies in this dispute. Section 144 of the SPA, which permits hardship exemptions, also appears in Part 8 of the SPA, which sets out the key SPA provisions governing rentals. Since the AirBnB use in these circumstances is not a rental, a hardship exemption from the rental restriction bylaw would not permit AirBnB use."

The CRT also found that using the strata lot as an AirBnB unit would also be using her strata lot for commercial or business activity and would breach another bylaw that prevented that type of use.

While the CRT denied the owner's application to use her strata lot as an AirBnB unit, the CRT did agree that the strata could not charge its legal fees to her and ordered the strata to remove those charges from her account.

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TAEYA FITZPATRICK Taeya Fitzpatrick has specialized in strata law for most of her practice, has won cases for her clients in the BC Supreme Court, the BC Court of Appeal, and assisted with a client succeeding in defending a Civil Resolution Tribunal claim. Taeya offers full services to a strata corporation or a strata owner from redrafting the strata’s bylaws, collection of outstanding strata fees or other charges, issues with bylaw enforcement, to amending the strata plan. For more information on the services provided, you can reach Taeya by email, phone: 250-763-4323, or at her Web Page.