Evicted for Landlord’s Use: Recent Amendments to S.49 of the Residential Tenancy Act

British Columbia’s Residential Tenancy Act (RTA) has received amendments earlier this year, primarily concerning notices to end tenancies issued by landlords on the basis that they require the rental premises for their own use. Like the series of amendments to both the Act and its Regulation in late 2017 that prevent landlords from signing “vacate clauses” (or “true” fixed-term tenancies) and applying for additional rent increases in most circumstances, these amendments mainly aim to protect the rights and interest of tenants.

Section 49 of the RTA allows residential landlords to unilaterally evict tenants on the following three reasons related to landlords’ own use:

  • The landlord, or a close family member, will occupy the rental unit.
  • The landlord has entered into an agreement selling the unit and the buyer plans to occupy the rental unit.
  • The landlord plans, and has obtained all the required permits, to demolish or renovate the unit in a way that requires it to be vacant.

All of these reasons remain untouched by the amendments. However, the three requirements for any s.49 eviction—notice, opportunity to dispute, and compensation—have all been increased in favour of the tenants.

Notice and Opportunity to Dispute:

Previously, the notice for evictions on all three reasons is two months, but the amendment has extended the period for renovation or demolitions to four months. The window of time the tenants have to appeal these notices before the Residential Tenancy Branch (RTB) has also been extended to 30 days after receiving the notice for renovation/demolition evictions, and 15 days for the first two.

Compensation

It is the landlords’ duty to compensate tenants for one month’s rent for s.49 notices remains unchanged, but a new penalty for failing to provide tenants evicted on the basis of renovations/demolitions the right of first refusal has been imposed in s.51.2-3. The right of first refusal refers to the tenant’s right to enter into a tenancy agreement at the same unit after renovations are completed. This penalty is a steep one, equivalent to 12 times the monthly rent, which is also the newly prescribed amount if the tenant proves that an eviction under s.49 was not issued in good faith, i.e. the landlord did not begin using the unit for stated purposes for at least six months, within a reasonable time after ending the tenancy.

 

By implementing these harsh provisions in place, the provincial government intends to curb landlords’ contravention of the RTA, and incentivize tenants to take them to dispute resolution at the RTB when it is discovered. However, owing to the recency of these amendments, as well as the RTB’s sporadic additions to its decision database, we have yet to read a decision that invokes these updated provisions.

Recent Decisions

However, one of the most recent decisions concerning compensation for a s.49 eviction sheds some light on instances where the landlord issues notice on the basis that they will return to occupy the unit. In Decision 7033, heard in November 2017, the applicant tenant alleges that the landlord has not moved back into the unit after she moved out. However, the arbitrator wrote that:

“… In my view a rental unit is occupied by the Landlord providing they are using it for a personal purpose, even if that purpose is simply to store personal property.”

In time, as more decisions concerning s.49 evictions become available, the public will be able to gain a better idea of how these disputes are resolved, but should keep in mind that RTB decisions are not binding on future hearings.

The provincial government’s Rental Housing Task Force is hosting community meetings across the province to gather ideas for further amendments to existing tenancy legislation, which will be reported to the Premier and the Minister of Municipal Affairs and Housing in fall 2018.

About the Author:

This is our first blog post from articling student, Wen He. Wen is interested in many practice areas including civil litigation, property, and family law. He is equipped with a unique cross-cultural perspective and skillset, having spent his youth in Beijing, China. He speaks Mandarin with native fluency and maintains a legal education column on a local Chinese newspaper. Find out more about Wen by clicking HERE.

Limitation Periods applicable to the Environmental Management Act

British Columbia’s Environmental Management Act sets out a comprehensive scheme with respect to the remediation of contaminated sites.  Central to that scheme is section 47 of the Act, which permits a party who has incurred the cost of remediating a site to bring a court action to recover the costs of remediation.  In a typical Environmental Management Act action, the party who has incurred the cost will seek contribution from the property’s previous owners and operators.  Even though the mechanisms in the Act are designed around the principle of “polluter pays”, the provisions of the Act make it difficult for parties who have owned or operated a site to escape liability, as the burden of proof is on those parties to show that they fall within one of the Act’s limited exceptions found in section 46 of the Act.  As a result, actions under the Act can often involve parties that have had no involvement with the property for decades.  As a result, a frequent question asked by parties finding themselves in such a dispute is whether or not the BC Limitation Act applies, or whether there are any time limits associated with bringing such a claim.

Although the Act does apply retroactively in the sense that all previous owners and operators the property can be found liable for the cleanup, a plaintiff does not have an indefinite time in which to bring their action.  In First National Properties Ltd. v. Northland Road Services Ltd., 2008 BCSC 569, the court confirmed that the BC Limitation Act does apply to remediation claims pursuant to the Environmental Management Act.  In that case, the court found that the limitation clock started running once the Plaintiff was aware of the cost to remediate.  In J.I. Properties Inc. v. PPG Architectural Coatings Canada Inc., 2014 BCSC 1619, the court confirmed that the six year limitation pursuant to the 1996 Limitation Act was applicable.

Prior to the passage of the 2012 Limitation Act, it appeared that an amendment would be made to the Environmental Management Act to the effect that an action could be brought at any time. However, when that legislation was passed, no consequential amendments were made to the Environmental Management Act, so it remains at this time that the Limitation Act applies.  Thus, a plaintiff who incurs remediation costs ought to bring their cost recovery action swiftly, as the Act’s two year limit will likely come into play.  Further, it remains to be considered in a future case what effect, if any, the discoverability provisions of the new Limitation Act have in respect of a cost recovery claim.

About the Author:

W. Eric Pedersen is a lawyer practicing in the civil litigation department at Velletta & Company. Mr. Pedersen has worked with the civil litigation department to achieve successful outcomes for individuals and businesses, appearing in Provincial Court, Supreme Court, and the British Columbia Court of Appeal.  Find out more about Eric by clicking HERE.

Relocating with Children: The Single Parent Know-Alls

Are you separated from your spouse and thinking about moving with your child? Before jumping on a plane, there are key questions that you need to ask and certain factors that you need to be aware of.

Firstly, does your child spend more time with you then they spend with your ex-spouse? If so, a court is more likely to allow you to relocate with your child than if the child spends equal parenting time with both parents. If your child spends equal parenting time with both you and your ex-spouse, then the only consideration a court takes into account is what is in the best interest of your child.

If you do not have equal, or near equal, parenting time with your ex-spouse then the considerations are different. A court will require that:

  1. You have made a proposal for reasonable and workable arrangements to preserve your child’s relationship with their other parent, persons who have contact with them, and persons who play significant roles in their lives; and
  2. Your proposed relocation is made in good faith.

What are reasonable and workable arrangements?

In the case of Hansen v. Ferguson, 2015 BCSC 588 the court found the mother proposed reasonable and workable arrangements to preserve the father’s relationship with the children by sharing all travel costs, returning to Victoria twice a year with the children, transferring all available travel points to the father for his use, and providing regular Skype contact and email reports when he was at sea.

Although every case is different, sharing the cost of travel, planning trips home, and ensuring the children remain in contact with the other parent are all factors that the courts will consider as reasonable and workable arrangements. Keeping in mind the courts want to see that your child will be able to maintain his or her relationship with their other parent.

What is the meaning of good faith with regards to relocation?

Good faith is defined in s.69(6) of the Family Law Act and includes:

  • the reasons for the proposed relocation;
  • whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
  • whether 60 days’ notice of an intention to relocate was given; and
  • any restrictions on relocation contained in a written agreement or an order.

Accordingly, if you can satisfy the court of the above, then the relocation is presumed to be in the best interests of the child and should thus be granted, unless the children’s other parent satisfies the court otherwise.

Returning to the case of Hansen v. Ferguson the court found that the mother had shown her cost of living would be substantially less in Ontario to that of Victoria, and the proposed move was well planned. The mother would have more emotional supports in Ontario through extended family and support of her boyfriend.  This would have a trickle-down effect on the children, given that she was the primary caregiver.

The court specifically stated that:

[48]As the primary caregiver, this improvement in the mother’s general quality of life will also benefit the children. However, neither the mother nor the children have personal connections with anyone in Pembroke other than R.W., and the children will be far away from their father, grandmother, aunt and cousin, with whom they have established close bonds. This is, of course, the primary concern, but it does not on its own show an absence of good faith. These children are very young and they have not yet established routines outside of their immediate family lives that are important for them. Adapting to a new life away from their father and his family may be challenging for them, but they will be with their mother with whom they also have very close bonds. And given the mother’s plan to have more time with them and to place them in daycare where they will meet other children, I would expect them to socialize in their new environment reasonably quickly.

[49] In this case, the mother has given a lot of consideration to the impact of this move on her children’s emotional well-being. Despite the separation from the father, I find that the relocation will likely enhance the general quality of their lives.

 

If you are thinking about relocating to a new city, with your child, please contact Velletta & Company today. We would be happy to advise you on the proper procedure and help you satisfy the above requirements.

 

About the Author:

Jade Fraser grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education. Find out more about Jade by clicking HERE