Poorly worded bylaw sees Kelowna condo owners lose strata dispute | iNFOnews | Thompson-Okanagan's News Source

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Poorly worded bylaw sees Kelowna condo owners lose strata dispute

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January 29, 2021 - 1:02 PM

Two Kelowna condo owners have found out the hard way that vacation rentals are allowed in their building even though the strata's bylaws suggest that suites cannot be rented on a short-term basis.

In an effort to get the strata council to take action against owners renting their suites as short-term vacation rentals, condo owners Enid Bradley and Pete Stanton launched a Civil Tribunal Resolution dispute against the strata council.

According to a Jan. 25, Civil Tribunal Resolution decision, the condo owners argued the strata must enforce the no vacation rental rule and as evidence pointed to the bylaw that reads: "Each strata lot shall be occupied only as a single-family residence."

However, the Tribunal found contradictory language in the strata's bylaws and ruled against the condo owners.

"I find single-family residential use required under (the) bylaw... cannot be interpreted to specifically exclude (short term vacation rentals)," Tribunal member Sherelle Goodwin said in the decision.

The Tribunal ruled to exclude short-term vacation rentals would be contrary to the strata’s bylaws "as a whole" and the "factual context which existed at the time the bylaw was created."

While much of the decision focuses on the complex legal wording of multiple bylaws, the case highlights the often contentious issue of short term rentals and the difficulties of policing them.

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

In an unusual move in a strata dispute at the Civil Resolution Tribunal, the condo owners submitted two independent legal opinions the strata council had obtained that backed up their position.

However, the strata council argued the legal opinions were subject to solicitor-client privilege and the condo owners only managed to obtain them because they had sat on the strata council. The Tribunal agreed, refusing to have them admitted as evidence.

While it's unknown what the legal opinions were, the strata council's reluctance to have them submitted as evidence suggests that the condo owner's case might be looked at differently in a higher court.

The unusually complex and lengthy dispute also highlights that while the City of Kelowna has adopted new bylaws to police vacation rentals, strata councils appear to be under no obligation to report its members who contravened the rules.

READ MORE: Kelowna luxury vacation rental forced to return deposit after owners separated, blamed each other

The decision says the building is zoned to allow for vacation rentals providing the owner has used the dwelling as their home for 240 days of the year, and under the City of Kelowna's rules, residents renting out condos need a business licence from the City.

Bradley and Stanton asked the Tribunal to force the strata council to tell the City about residents who don't have a business licence and rent out their condos. The condo owners say the strata has an obligation to do so pointing to the rule that says, "no illegal activity shall take place in the strata."

However, the Tribunal again ruled against them on that point as well.

"I find that neither the (short term rental owners) nor the City bylaws, place an obligation on the strata to report potential bylaw offenders to the City," the decision says. "While the strata may wish to report such contraventions, I find it is not required to do so under the City’s bylaws."

The Tribunal also ruled it did not have the authority to address the condo owners' claim that there is an alleged conflict of interest because some strata council members support vacation rentals, saying such claims can only be dealt with by the B.C. Supreme Court.

Ultimately, with the exception of an order for the strata to amend some council meeting minutes, the condo owners lost the case.

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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