Can your strata stop you renting?

What changed in November 2022

For most of the last twenty years, a BC strata could pass a bylaw limiting rentals. Some buildings banned them outright. Others capped them at a handful of units and kept a waiting list, which meant an owner could buy a condo and find out at the AGM that renting it was years away.

The Building and Strata Statutes Amendment Act, 2022 ended that. It received Royal Assent on 24 November 2022 and took effect that day. Section 141 of the Strata Property Act now reads:

“The strata corporation must not screen tenants, establish screening criteria, require the approval of tenants, require the insertion of terms in tenancy agreements or otherwise restrict the rental of a strata lot.”Strata Property Act, section 141

Two things follow. First, old rental restriction bylaws are unenforceable, whether or not the strata has got around to removing them. Plenty of Sea-to-Sky stratas haven't, so don't be alarmed if the registered bylaws still say rentals are limited. Second, the strata has no role in choosing your tenant. It can't ask to interview them, collect their application, or make its approval a condition.

The same law also ended most age restriction bylaws, keeping only those that require residents to be 55 or older. That rarely comes up in Whistler, but it's worth knowing if your building has one.

What your strata can still restrict: short-term stays

The 2022 change protected tenancies. It did not protect nightly or vacation rentals. A strata can still pass a bylaw that limits or bans the use of a unit as vacation, travel, or temporary accommodation, and it takes a three-quarter vote of owners to adopt one. The Strata Property Regulation lets the strata set fines of up to $1,000 a day for breaking it.

This matters in Whistler more than most places, because a lot of our condos and townhomes sit on land where zoning allows nightly rental. Zoning allowing it doesn't mean the building does. If your strata has a short-term accommodation bylaw, that bylaw applies on top of the zoning, and the fines are large enough that nobody should test it.

If you've been renting nightly and your strata has tightened up, the usual path is a move to monthly or seasonal tenancies, which the strata can't block. The guide to Whistler's short-term rental rules covers the zoning and provincial side of that decision.

The grey zone: one-month and seasonal stays

So the line that matters is between a tenancy, which the strata can't stop, and vacation or temporary accommodation, which it can. That line isn't drawn by the number of nights alone. It turns on what the arrangement actually is.

Most arrangements are clearly one or the other. The guide to what your Whistler rental counts as walks through the tests the Residential Tenancy Act uses.

The paperwork your strata is owed

The strata can't approve your tenant, but it is entitled to know the tenant exists and has been told the rules. Section 146 of the Act puts three duties on you as landlord:

• Before the tenancy starts, give your prospective tenant the current bylaws and rules.
• At the same time, give them a Notice of Tenant's Responsibilities, known as Form K, and have them sign it.
• Within two weeks of renting, give the strata a copy of the signed Form K.

Skip it and the risk lands on you, not the strata. A tenant who wasn't given the bylaws and Form K can end the tenancy early without penalty, and the landlord can be required to pay their reasonable moving costs up to one month's rent.

It's the most commonly missed step I see with owners renting their own unit for the first time, usually because nobody told them it existed. It's also the easiest to get right: download the form, attach the bylaws to the lease package, and email the signed copy to the strata manager the day it comes back.

When your tenant breaks a bylaw

Your tenant lives under the building's bylaws the same way you would: noise, pets, smoking, parking, garbage, hot tubs, whatever your strata regulates. When they break one, the strata can fine the tenant directly. And under section 131, if the tenant doesn't pay, the strata can collect the fine from you, as landlord and owner. It can't collect more than the fine itself, but it doesn't have to chase your tenant first.

Three things keep that from becoming your problem:

• Screening for the building, not just the unit. If the strata bans pets or smoking, a tenant who needs either isn't the right fit, however good their references are.
• A tenancy agreement that says so. The lease should state that the tenant must follow the bylaws and is responsible for fines they cause. If you want to recover a fine from the deposit, you still need the tenant's written agreement or a Residential Tenancy Branch order.
• Someone who hears from the strata first. Most fines start as a warning letter. Dealing with the first letter quickly usually means there's never a second.

In serious cases the strata can go further. If a tenant repeatedly or continuously breaks a significant bylaw, the strata can serve its own one-month notice to end the tenancy for cause. It's rare, and it almost never happens to a tenant who was screened with the bylaws in mind.

Moving fees, fobs, and the day-to-day

A strata can charge a fee for moving in or out, but the fee has to be reasonable and has to be set out in a bylaw, or in a rule the owners have ratified. The Civil Resolution Tribunal has cancelled moving fees that didn't meet that bar, and the BC Supreme Court upheld one of those decisions in 2018. If your strata's moving fee looks out of line, ask where it's authorized.

The rest is practical, and it's where first-time landlords lose a day:

• Booking the elevator or loading bay through the strata manager or caretaker
• Fobs, garage remotes, and mailbox keys for the tenant, and what replacements cost
• Which parking stall, storage locker, and ski locker go with your unit
• Garbage, recycling, and bear-proofing rules, which Whistler buildings take seriously

None of it is difficult. It just has to be sorted before the tenant arrives, not while they're standing in the lobby with a moving truck idling outside.

Insurance: what the strata's policy won't cover

The strata insures the building. That policy is not written around your tenancy, and there are three gaps that matter once your unit is rented:

• Lost rent. If a leak or fire makes your unit unlivable, the rent stops. I recently read through a Whistler complex's AGM minutes where the strata's own policy expressly excluded loss of rent for tenanted units. Owners in that building who assumed they were covered were not.
• The deductible. When a claim starts in your unit, the strata can pass its deductible on to you in many circumstances, and many stratas have bylaws making that the default. Water deductibles in BC buildings can run to tens of thousands of dollars.
• Your contents and liability as a landlord. Furniture, appliances you supplied, and any claim from a tenant or their guest sit outside the strata policy.

The fix is a landlord's condo policy, not an owner-occupied one, with rental income coverage and deductible coverage sized to your strata's actual deductibles. Your strata manager can tell you what those are. Have your broker check the policy against them before the tenancy starts, and ask your tenant to carry their own tenant insurance, which every one of my listings requires.

What isn't a strata rule at all

Section 141 limits what a strata can do. It says nothing about rules set by anyone else, and in Whistler several of those come attached to the property itself.

Zoning and the covenant on title. Whistler zoning and the Phase 1 and Phase 2 covenants decide what uses your property allows. A Phase 2 condo-hotel unit bought inside one of the larger hotels generally has to stay in the hotel's rental pool, and that has nothing to do with the strata's bylaws. The Whistler rental rules guide explains how to look up your own parcel.

Whistler Housing Authority homes. Resident-restricted homes carry a housing covenant registered on title that sets terms such as Whistler employment, occupancy, and rental rates, and owners file an annual occupancy declaration with the WHA. Those terms are a separate agreement, not a strata bylaw, so the 2022 change doesn't override them. If you own a WHA home and want to rent it, read your covenant and speak to the WHA before you do anything else.

The Residential Tenancy Act. Once your tenant moves in, the tenancy itself is governed by the RTA: deposits, rent increases, notices, and ending the tenancy. The landlord's guide to the RTA covers it in plain language.