As in Ontario and many other jurisdictions, Airbnb and similar short-term leasing web-based services are big business in British Columbia. While some condo communities have embraced Airbnbs, requiring owners to provide guest information to the concierge and charging user fees to pay for increased security, etc., other condo communities which are not suited to this type of enterprise, have been plagued by the downsides of Airbnb. Many stratas are unable to pass the required ¾ vote to implement a bylaw to specifically ban this type of rental and therefore passing one may be problematic. Therefore, they must seek other viable routes to address their concerns. In this post, I discuss how an Ontario decision may impact how we do things in BC.

Legal Update

Most stratas have standard bylaw which states that it is a contravention to use a strata lot in a way that is either illegal or contrary to the use shown on the strata plan. Furthermore, in the City of Vancouver and other municipalities, city bylaws prohibit most residential properties for being used for a hotel-like accommodations. This makes sense from the city’s perspective, because hotels are subject to certain taxes, safety standards, and increased regulations. However, many stratas have grown frustrated after repeatedly requesting the city enforce its own zoning bylaws.

In October 2016, the City of Vancouver filed court proceedings against an owner who was rather flagrantly renting out her residential property for commercial purposes. However, since then, the City of Vancouver appears to be actively moving towards regulating and licensing short-term rentals rather than prosecuting them. The City’s proposed rules would allow short-term rentals in certain circumstances, such that the activity may no longer be illegal from the City’s perspective. Therefore, strata corporations without specific bylaws prohibiting short-term rentals (which are legally different from conventional strata rentals, and so rental restriction bylaws arguably do not apply to them under current B.C. law) would be left without an effective tool to counter short-term rental use. Luckily for strata corporations who wish to crack down on Airbnb, the Menzies Ontario decision may change that. (We have blogged already on the Menzies decision).

Impact of the Decision on B.C.

The greatest impact of the Menzies decision is the increased clarity that the Court awarded as to the meaning of “residential” or “single family dwelling”. Many strata plans in B.C. in fact are annotated indicating their use for residential purposes. For those strata plans there is an argument based on the Ontario decision that this prohibits the use of those units for Airbnb or other short-term rental purposes. For example, the judge found that single family accommodations don’t have “credit card policies!”

If residential use is declared by the B.C. Court to exclude Airbnb or similar services, stratas can likely lean on standard bylaw 3 or their equivalent use bylaw, provided their strata plans set out this intention. This could be a serious blow to any owner attempting to claim that their ability to offer the unit for short term rental is grandfathered. This would also support the reasonable expectations of owners in condominiums developed before the advent of Airbnb marked for ‘residential use’ that their neighbours would not be operating in a hotel-like manner. The decision to allow short term rentals that is actively made by a community, rather than by default.