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RESIDENTIAL TENANCIES - Security of tenure - Demolition, conversion or repairs

Monday, May 17, 2021 @ 9:30 AM  


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Appeal by the Society from an order of a chambers judge setting aside a decision of the Residential Tenancy Branch which cancelled a notice to end tenancy. The appellant was a tenant at a park owned by the respondent. The leased premises consisted of land and various buildings and structures, including cabins, freestanding outhouses, storage units, a private driveway and carports. There were seven cabins on the premises. Cabins two to seven were subject to a heritage designation. Most of the occupants were directors of the appellant. The respondent passed a resolution to convert the park, including the leased premises, to public park use and terminated the appellant’s lease. The appellant sought dispute resolution at the Branch. Before the arbitrator, the respondent testified that it did not intend to use any of the premises, including the cabins, for residential use and that no approvals or permits were required to change the premises to a non‑residential public use. The arbitrator concluded that the respondent had not complied with s. 49 of the Residential Tenancy Act in that the respondent had not established an intention to convert Cabin 1 to a non‑residential use and had not obtained all the necessary permits to convert Cabins 2‑7 from residential accommodation to interpretive landscape displays. The chambers judge concluded that the decision, in both these respects, was patently unreasonable.

HELD: Appeal dismissed. The chambers judge did not err in finding that there was no evidence before the arbitrator which could support a conclusion that Cabin 1 was not converted to a non‑residential use. At the time the Resolution was passed, it was clear that the respondent intended to convert the whole of the premises to a non‑residential use. The record on appeal indicated that the cabins were always intended and expected by the respondent to be vacant. There was no evidence suggesting that, from the time of the Resolution, any part of the interior of any of the cabins was intended to be open to the public or to be occupied in any way. The respondent clearly and unequivocally resolved to convert all cabins to a non‑residential use. The uncontroverted evidence was that the land and improvements, including the cabins, were undergoing their long‑expected conversion to public park lands, inconsistent with any future residential use. The respondent had resolved, in good faith, to convert the premises, including the cabins, to a non‑residential public use. The undisputed evidence before the arbitrator showed that no permits or approvals of any kind were required to immediately convert the premises, including the cabins, to a non‑residential public use. Considering the uncontroverted evidence of the respondent and the relevant municipalities that no permits or approvals were required to convert the premises, including the cabins, to a non‑residential use, there was no evidentiary basis on which to conclude that the respondent had not met this requirement to obtain approvals to convert the cabins to non‑residential use.

Metro Vancouver (Regional District) v. Belcarra South Preservation Society, [2021] B.C.J. No. 571, British Columbia Court of Appeal, R.J. Bauman C.J.B.C., E.A. Bennett and P.G. Voith JJ.A., March 24, 2021. Digest No. TLD-May172021002