Difference between revisions of "Assisted and Supported Living Tenancies (19:XIII)"

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Assisted and Supported Living Tenancies (19:XIII) (view source)

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The RTA does not cover Assisted Living nor most Supported Living Tenancies. In September 2013, the B.C. Law Institute published a report after a three-year review regarding drafting legislation on Assisted Living and Residential Care tenancies. The Report on Assisted Living in British Columbia is available online at www.bcli.org/publication/report-on-assisted-living-in-british-columbia.


XIV. Tenancies in STRATA LOTS (CONDOMINIUMS)
Hospitality service may include meal services, laundry services, social and recreational opportunities or a 24 hour emergency response system. Personal care services would include assistance with eating, grooming, bathing, etc.; storage and distribution of medications; supervision of cash and property; nutrition monitoring; behaviour management; or psychosocial rehabilitation. Tenants and landlords entering into assisted/supported living arrangements need to sign tenancy agreements, and also need to sign separate service agreements specifying which services are included and on what terms. A service agreement should cover:


*the hospitality services and personal care services provided to each occupant of the rental unit;


The Strata Property Act, S.B.C. 1998, c. 43, [SPA] and the Strata Property Regulation, B.C. Reg. 43/2000, [SPR] govern strata properties. Persons renting a residential condominium are tenants under the RTA. Such tenants are also subject to Parts 7 and 8 of the SPA. Below is a brief description of the SPA as it relates to landlords and tenants.
*the amount payable for these services and when it is due;


=A. The Law Under the Strata Property Act=
*the landlord’s entry into the rental unit to provide services; and


The definition section refers to both “landlord” and “tenant”. A tenant is a person who rents all or part of a strata lot, and includes a sub-tenant, while a landlord can include a tenant who rents to a sub-tenant.
*whether there is a requirement for other occupants and guests to pay for services that are not needed.


Part 7 of the SPA covers bylaws, rules, fines, and eviction (ss 119 - 138):
More information on assisted living services can be found at the website of the Assisted Living Registry at www.health.gov.bc.ca/assisted/residents/.


s 120 provides for standard form bylaws, which can be amended;
Fees for these services should not be part of a lump-sum monthly bill, but should be set out separately from the rental fee. A landlord can increase the rent if the tenant agrees, or once a year by a percentage permitted by law. The landlord must give the tenant three whole rental months’ written notice before the effective date of the rent increase. A landlord will not be permitted to withdraw or restrict rental services if they are essential, or if they constitute material terms of the rental agreement.
 
s 123 states that a bylaw prohibiting pets does not apply to a pet already living with a tenant when the bylaw is passed. This section also deals with age bylaws. Tenants can be well-served by reviewing the Human Rights Code to see if the bylaw is enforceable (see s 121(1)(a) of the SPA as it relates to age). Specifically, see section 10 of the Human Rights Code;
 
s 124 states that bylaws can provide for a voluntary dispute resolution process and statements or documents made only for the purpose of such voluntary dispute resolution cannot be used later at Court or dispute resolution;
 
s 125 gives the strata corporation the power to make rules governing use, safety and condition of the common property and assets;
 
s 130 permits fines to be levied if a tenant or his or her guest contravenes a bylaw or rule; see section 133, which speaks to maximum amount of fines. See section 7.1 of the Regulations for maximum amounts. If a strata lot is tenanted, the tenant should be fined;
 
s 131 provides that the strata corporation may collect fines levied against a tenant from a landlord/owner, but cannot fine the landlord/owner directly. If the landlord/owner pays a fine levied against the tenant, the tenant owes the landlord/owner the amount paid; section 7 of the RTA, sets out “fees” that landlords can charge provided they do not contradict s 131 of the SPA;
 
s 133 allows for the strata corporation to also recover reasonable costs of remedying a contravention of the bylaws from the person whom they fined pursuant to s 130;
 
s 134 states that the strata corporation may, for a reasonable length of time, deny a tenant the use of a recreational facility that is common property if the tenant (or guest of the tenant) has contravened a bylaw or rule relating to the recreational facility;
 
s 135 states that the strata corporation must not impose fines or deny the use of recreational facilities unless the particulars of a complaint have been given in writing and reasonable opportunity is given to answer the complaint, including a hearing if requested by the tenant. The strata corporation must also give prompt notice in writing of any decision it reaches concerning a fine or denial of recreational facility. This is a highly technical section. Often strata corporations do not comply with it very well and technical defenses are available on a close reading of the section and the correspondence on the file;
 
s 137 permits a landlord to issue a one-month Notice To End Tenancy under RTA s 47 for “a repeated or continuing contravention of a reasonable and significant bylaw or rule by a tenant”; and
 
s 138 permits the strata corporation to issue a one month Notice To End Tenancy under RTA s 47 for “a repeated or continuing contravention of a reasonable and significant bylaw or rule… that seriously interferes with another person’s use and enjoyment of a strata lot, the common property or the common assets”.
 
NOTE:  As a practical matter, it may be difficult for a Strata Corporation to evict a tenant, despite ss 137-138 because the Residential Tenancy Branch has been unwilling to recognize a Strata as a “Landlord” as defined in the RTA.
 
Part 8 of the SPA governs “rentals” (ss 139-148):
 
s 141 permits a strata corporation to pass a bylaw restricting rentals by: prohibiting rentals entirely; limiting the number or percentage of units that may be rented; or limiting the period of time for which units may be rented (i.e. requiring fixed term tenancies);
 
s 142 provides that “restrictions” do not apply to prevent rental of a unit to a member of the owner’s family; “family” is defined in the Regulations, s 8.1;
 
s 143 contemplates a “grandfather” clause allowing present tenants to remain until the end of their tenancy;
 
s 144 permits an owner to apply for exemption from a rent restriction bylaw in cases causing hardship to the owner; “hardship” is not defined, and will depend on the facts of the case. Mere financial difficulty is often not enough;
 
s 145 provides that if a tenant is renting without knowledge of a rental restriction bylaw, the tenant may end the tenancy agreement without penalty by giving notice to the landlord within 90 days of finding out about the bylaw. Also, the tenant can claim reasonable moving expenses in such a situation to a maximum value of one month’s rent;
 
s 146 requires a landlord to give a prospective tenant (before renting) a copy of the current bylaws and rules, and a Notice of Tenant’s Responsibilities in the prescribed form (often referred to as a “Form K”. Within two weeks of renting, the landlord must give the strata corporation a copy of the Notice of Tenant Responsibilities signed by the tenant. If the landlord fails to comply with s 146, the tenant is still bound by the bylaws and rules, but may choose to end the tenancy within 90 days of finding out. The tenant can claim reasonable moving expenses to a maximum value of one month’s rent;
 
s 147 allows an owner to assign to a tenant some or all of the powers and duties of a landlord under the Strata Property Act, but this must be done in writing and copied to the strata corporation; and
 
s 148 defines a “long term lease” as a lease for a set term of three years or more. Such a lease confers the powers and duties of the landlord onto the tenant for the term of the lease. The landlord must not deal with his or her interest in the strata lot during a long-term lease in a way that would unreasonably interfere with the rights of the tenant.
 
SPA Form K is a notice of tenant’s responsibilities:
 
A landlord can force a tenant to sign Form K, which means a tenant must follow the strata bylaws. The landlord must provide a Form K to the tenant. It is important the tenant reads the bylaws before signing, as the tenant may be liable for a contravention.
 
NOTE: A helpful web site that contains the consolidated SPA, regulations, highlights and information bulletins is available at www.fic.gov.bc.ca/?p=strata_property/index. The web site for the Condominium Home Owners Association of B.C. (CHOA) also holds valuable information at www.choa.bc.ca.




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