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B.C. couple fined $107K in Airbnb dispute win case

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February 05, 2021 - 7:00 AM

A B.C. couple that racked up more than $100,000 in strata fines for allegedly letting out their condos as short term vacation rentals will only have to pay a $200 penalty after the strata council failed on multiple levels to prove they'd done anything wrong.

According to a Feb. 1 Civil Resolution Tribunal decision, the strata even revamped its bylaw prohibiting vacation rentals but the Tribunal ruled it was still "awkwardly worded" and "unclear" and therefore thousands of dollars worth of fines were invalid.

One of the condo owners also escaped having to pay $45,000 of fines because the strata council had written to her at a different address and not followed the protocol set out in the Strata Property Act.

According to the decision, Steven Hoang and Shayla Nguyen co-own a condo at a 38-storey highrise in Surrey and Nguyen also owns a separate apartment in the same building.

The strata council alleged both units were rented out as vacation rentals between August 2018 and July 2020. The strata said neither of the owners live in the building although the couple denied that.

The strata put forward large amounts of evidence to support its claims, including more than 100 letters, while the couple appears to have submitted very little to back up their position.

In the decision, Hoang says the strata's accusations are "all lies."

While the Tribunal picked through the finer details of the Strata Property Act as evidence to why the fines are invalid, the case points to the growing popularity of vacation rentals and the disputes that are arising when bylaws are deemed to be unclear.

READ MORE: Poorly worded bylaw sees Kelowna condo owners lose strata dispute

According to the decision the strata council's bylaw states, "a resident must not use or permit to be used, a strata lot except as a private residential dwelling home." And that "a strata lot is not to be used or occupied for transient, commercial or hotel purposes under a contract, licence arrangement or any other form of agreement for transient, short-term rentals."

The bylaw goes on to says units can not be used for short-term accommodation advertised under the names VRBO, Airbnb, and Home Away.

While the bylaw seems clear and robust, the Tribunal disagreed.

"I find the bylaw is awkwardly worded such that it is unclear whether the bylaw applied only to short-term rentals as defined, or if it also applied to short-term accommodations such as licencing arrangements," reads the decision.

The Tribunal goes onto point out the difference between a tenancy and licence arrangement and rules that a series of $500 fines issued before the bylaw was changed aren't valid as the maximum fine could only be $200.

READ MORE: Kelowna vacation rental forced to return deposit to partying guests who broke the rules

But even after the strata changed its bylaw in December 2019, that wasn't much help either.

"I interpret (the) new Bylaw... applies only to licence arrangements and not to tenancy arrangements. I say this based on a plain reading of the bylaw and that the words 'tenancy' and 'rental' are not used," the decision reads.

The Tribunal goes on to say that advertising a condo on Airbnb or VRBO is not a breach of the bylaw and that the strata failed to prove a bylaw was breached.

Ultimately, $49,200 of fines were wiped clean.

Separately, the strata also failed to prove Nguyen owed $57,850 in fines for renting out her condo.

The strata claimed the condo was being illegally rented out and used for sex trade work, and that "multiple men" attended the condo within a short period of time.

However, the Tribunal ruled that "multiple individuals attending (the condo) is not illegal, and there is no evidence of what activity actually occurred."

The Tribunal also dismissed fines for incidents involving drinks spilt and vomit found in the elevator, and when a guest allegedly threw a cell phone from the condo's balcony into the building's hot tub.

While security staff from the hotel located at the base of the buildings submitted a report and the RCMP were called regarding the cell phone incident, the Tribunal said there was no evidence the strata wrote to Nguyen imposing the $200 fine and it was therefore dismissed.

Hoang admitted to one incident when a door was damaged, and the Tribunal ruled the $200 fine is valid.

Ultimately, the strata fines were reduced from $107,250 to $200.

To contact a reporter for this story, email Ben Bulmer or call (250) 309-5230 or email the editor. You can also submit photos, videos or news tips to the newsroom and be entered to win a monthly prize draw.

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