A young couple who bought a house in February last year and moved in four months later, after renovating the former rental, were shocked to learn they had to pay $27,000 to former tenants under the Residential Tenancy Branch’s new stricter laws designed to curb illegal evictions.
Chingnga Fung and Boris Pak-Ho Cheung never even met the former tenants, evicted by the former landlord as part of the sale to the couple.
The couple was paying utilities on their new house, spending some time there and having the occasional meal delivered, but were not yet getting mail and ignored the notices for registered mail.
A Residential Tenancy Branch hearing was held without them.
It wasn’t until they got a notice from the branch on March 2 of this year that they learned they are ordered to pay former tenants Gabriel Rudner and Berit Berting. The former tenants applied for a hearing because they didn’t see anyone move into the house after they left.
“My husband and I were shocked to receive a decision letter from [the Residential Tenancy Branch] stating that we have to pay $27,000 to the past tenants from a former owner,” Chingnga Fung wrote in court documents. “We were not aware of the scheduled hearing nor received anything to this matter.”
They have asked for the B.C. Supreme Court to set aside the Residential Tenancy Branch decision in what’s called a judicial review, arguing the notice of the hearing was sent to the wrong address, one at which they didn’t officially live, contrary to Residential Tenancy Branch rules.
Theirs is among a number of Residential Tenancy Branch decisions arising from changes in B.C.’s Residential Tenancy Act, which are designed to compensate tenants who are evicted in bad faith by landlords, usually so the landlords can bring in new tenants at a higher rent.
Between Jan. 1, 2021, and April 30, 2023, there have been 2,200 applications to the Residential Tenancy Branch from “tenants claiming their landlords did not use the rental unit for the stated purpose for ending the tenancy for landlord’s use of the property,” according to an email from the Housing Ministry.
Tenants can only legally be given notice to leave a rental if the owner, or their or their spouse’s child or parent, plan to move in within a reasonable period after notice is given.
On July 11, 2022, the compensation for tenants wrongfully evicted jumped to 12 months rent from two. And in 2021, the government changed the act so the onus is now on the landlord, not the tenant, to prove the new tenant is a close relative.
The landlord can be exempted for “extenuating circumstances,” such as the death of the parent who was going to move in or the destruction of the rental unit by fire. But exemption wouldn’t be granted if the landlord changed his minds about moving in or hadn’t budgeted for renovations.
B.C. court documents show a number of Residential Tenancy Branch decisions ending up in the higher courts for review, but it not clear whether the number is up. The Residential Tenancy Branch tracks outcomes of applications but couldn’t provide numbers on Friday. And it doesn’t track the number referred to a judicial review.
A Richmond landlord late last month filed a petition for a judicial review of a Residential Tenancy Branch order in February that he pay his tenants a year’s worth of rent, or $49,200, after he ended their tenancy so his father could move in. The arbitrator’s decision rested on the marking of the wrong box on the eviction notice.
Another Residential Tenancy Branch decision that awarded tenants in a Victoria case 12 months rent, or $22,000, because it took the landlord six months to complete renovations before his whole family could move in, even though the landlord moved in earlier, was reversed by a B.C. Supreme Court judge.
The judge said the Residential Tenancy Branch arbitrator didn’t consider extenuating circumstances, including difficulty in hiring tradespeople and permit problems with the city. That decision was upheld by the B.C. Court of Appeal.
“While I cannot comment on specific details, I respect the Court of Appeal’s ruling and thank them for providing clarity on this issue,” Housing Minister Ravi Kahlon said in an email. “Our ministry will examine the ruling in detail and determine the effect on provincial policies going forward.”
Landlords B.C. support the Residential Tenancy Branch enforcing enforce penalties for illegal evictions, said CEO David Hutniak. “The penalties are obviously substantial, as they should be.”
But in the Victoria case, “There was a clear bias against the landlord by the arbitrator, with their outright refusal to consider the extenuating circumstances, thereby creating needless anxiety and cost for the landlord,” he said.
In a Kelowna Residential Tenancy Branch decision, in which tenants were awarded $12,000 for a year’s rent, a judge in a judicial review let the award stand because the landlord hadn’t proved extenuating circumstances for the delay in occupying the suite within six months.
The lawyer for Fung and Cheung, Masao Morinaga, said his clients’ case is a “cause for concern for all purchasers of homes, specifically if they renovate before moving in. What is a reasonable amount of time?”
