Presentation on theme: "Hoarding Presenter: Grant Haddock Property Management Vancouver, LinkedIn Group November 9, 2011."— Presentation transcript:
Hoarding Presenter: Grant Haddock Property Management Vancouver, LinkedIn Group November 9, 2011
Presentation Outline 1.Introductions 2.Discovering the Problem 2.1Strata Property 2.2Co-op Housing 2.3Rental Housing 3.Human Rights Code Considerations 4.First Response 5.Legal Response 5.1Strata Property 5.2Co-op Housing 5.3Rental Housing
2.0Discovering the Problem 2.1Strata Property Does the Strata Corporation have a problem lurking somewhere in the strata lot? Unless the Strata Corporation obtains third party information or the hoarders personal effects are spilling out of the unit into common areas, the problem may be undetectable. Protection by way of periodic inspections. The Strata is permitted to enter into a unit.
Discovering the Problem contd. Standard Bylaw 7 provides as follows 7.Permit entry to strata lot (1) An owner, tenant, occupant or visitor must allow a person authorized by the strata corporation to enter the strata lot (a) in an emergency, without notice, to ensure safety or prevent significant loss or damage, and (b) at a reasonable time, on 48 hours' written notice, to inspect, repair or maintain common property, common assets and any portions of a strata lot that are the responsibility of the strata corporation to repair and maintain under these bylaws or insure under section 149 of the Act. (2) The notice referred to in subsection (1) (b) must include the date and approximate time of entry, and the reason for entry. The above noted Bylaw lacks the full authority to simply inspect a unit, except if there is an emergency.
Discovering the Problem contd. 2.2Co-operative Housing Association The main corporate documents governing the relationship between the corporate co-op and co-op member are the Rules, which look like Articles of Incorporation and the Occupancy Agreement which resembles a Tenancy Agreement. Most occupancy agreements provide the following: Good neighbor provision wherein the member covenants not to cause any nuisance or disturbance that would effect other members of the co-op; A covenant to keep the interior of the unit in good condition and repair keeping with the character of the rest of the development;
Discovering the Problem contd. An agreement to allow the co-op to enter for any reason on 24 hours notice provided that it is for a reasonable purpose. Reasonable purpose if often defined but is an inclusive definition which provides some flexibility as to what a reasonable purpose is.
Discovering the Problem contd. 2.2Rental Property The Residential Tenancy Act provides for the Landlord’s ability to enter into the unit. Section 29 provides as follows: 29Landlord's right to enter rental unit restricted (1) landlord must not enter a rental unit that is subject to a tenancy agreement for any purpose unless one of the following applies: (a) the tenant gives permission at the time of the entry or not more than 30 days before the entry;
Discovering the Problem contd. 29Landlord's right to enter rental unit restricted (contd.) (b) at least 24 hours and not more than 30 days before the entry, the landlord gives the tenant written notice that includes the following information: (i) the purpose for entering, which must be reasonable; (ii) the date and the time of the entry, which must be between 8 a.m. and 9 p.m. unless the tenant otherwise agrees;
Discovering the Problem contd. 29Landlord's right to enter rental unit restricted (contd.) (f) an emergency exists and the entry is necessary to protect life or property. (2) A landlord may inspect a rental unit monthly in accordance with subsection (1) (b). Accordingly, if the Landlord suspects that a tenant hoarding, the landlord is best advised to exercise his right to inspect the property as allowed by Section 29 (2)
3.0Human Rights Code Considerations Two sections in particular have application to housing providers. Section 8 Discrimination in accommodation, service and facility Section 10 Discrimination in tenancy premises
Section 8 Discrimination in accommodation, service and facility (1) A person must not, without a bona fide and reasonable justification, (a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or (b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.
Section 8 Discrimination in accommodation, service and facility contd. On the face of it, this section of the Code would appear to be restricted to services and facilities customarily available to the public. Strata corporations have argued that services and facilities on their common property are not customarily available to the public. This argument has been rejected by the Tribunal who has found: “… that there is a public relationship between a condominium corporation and condominium owners, and that the corporation provides a variety of services to its owners.”
Section 8 Discrimination in accommodation, service and facility contd. While the “public services” rationale has not yet been applied in a co-op or rental accommodation context, it is submitted that the same responsibility to accommodate will apply to co-operative and rental properties as does Strata Corporations because of the similarity of the accommodation. Simply put, the section means that the housing provider shall not discriminate and has a duty to accommodate a person under a disability, up to the point of undue hardship. The duty to “accommodate” should not be confused with the providing of “accommodations” by a housing provider.
Section 10 Discrimination in tenancy premises (1) A person must not (a) deny to a person or class of persons the right to occupy, as a tenant, space that is represented as being available for occupancy by a tenant, or (b) discriminate against a person or class of persons regarding a term or condition of the tenancy of the space, because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, age or lawful source of income of that person or class of persons, or of any other person or class of persons.
Section 10 Discrimination in tenancy premises contd. Even though housing co-operatives are specifically excluded from the jurisdiction of the Residential Tenancy Act, the Tribunal has nevertheless decided that the relationship between the co-operative and its members is essentially one of tenancy and that therefore, complaints fall within the scope of Section 10. Emard v. Synala Housing Co-operative  B.C.C.H.R.D. No. 39 Simply put, the section means that the co-op or rental housing provider shall not discriminate and has a duty to accommodate a person under a disability.
Types of unlawful discrimination and harassment Race Religion Colour Marital Status Ancestry Family Status Place of origin Age Sex Physical or mental disability (which includes HIV/AIDS and drug or alcohol addiction Sexual Orientation Lawful source of income
Hoarding as a Disability Hoarding as a disability has not yet been determined in British Columbia but it is submitted that hoarding would undoubtedly be found to be a mental disability requiring an accommodation under the Human Rights Code. An interesting question is whether a strata corporation would be exempt under Sections 8 and 10 if the hoarding is contained to the owner’s strata lot. Another interesting question is whether the strata corporation would be caught by Section 10 of the Code if they are dealing with a renter of an owner whose hoarding was contained to the strata lot.
Hoarding as a Disability contd. Accommodation is not a one way street. A hoarder’s disability does not mean that they are relieved from compliance of the bylaws, rules or contractual provisions with the housing provider. Rather is means that if the hoarder is adversely impacted by the bylaws or rules or contractual provisions due to the disability, then the housing provider must take reasonable steps to accommodate the disabled person up to the point of undue hardship. Both parties have a responsibility in the accommodative process. Steel v. Bounty Housing Co-op, 2010 BCHRT 1
Traditional Human Rights Analysis A traditional Human Rights analysis has been found to be the only relevant test Lavender Housing Co-operative v. Ford, 2011 BCCA 114 The traditional analysis for discrimination under the Human Rights Code requires the claimant to establish: That the claimant is, or is perceived to be, covered by a protected ground under the Human Rights Code; That the claimant must have experienced adverse treatment That the protected ground must have been a factor in the adverse treatment. Armstrong v. British Columbia (Ministry of Health), 2010 BCCA 56 The protected ground need only be a factor in the adverse treatment to establish discrimination. It does not need to be the sole or overriding factor.
Traditional Human Rights Analysis contd. Defences There are the usual defences available to housing provider, namely: that the Tribunal lacks jurisdiction; the complainant simply can’t make out a case of discrimination based on the facts. Even if the complainant is able to establish a case of discrimination, the housing provider does have defences they may rely upon.
Traditional Human Rights Analysis contd. That a reasonable accommodation was offered and refused. When a complainant establishes a case of discrimination under the Code, the onus then shifts to the housing provider to establish a bona fide reasonable justification (“BFRJ”) for its conduct. In order to establish this justification, the housing provider must prove that: 1. They adopted the standard for a purpose or goal that is rationally connected to the function being performed;
Traditional Human Rights Analysis contd. 2.It adopted the standard in good faith, and in the belief that it is necessary to the fulfillment of the purpose or goal; and 3.The standard is reasonably necessary to accomplish its purpose or goals, in the sense that the housing provider cannot accommodate the Complainant without incurring undue hardship. British Columbia (Superintendant of Motor Vehicles) v. British Columbia (Council of Human Rights),  3 SCR 868 (“Grismer”)
4.0First Response Community Family Resources Because housing providers are dealing with mental and human rights issues, it is advisable to attempt to firstly resolve the issue through non- traditional methods which would primarily consist of contacting family members, friends, community resource groups or the Social Services Ministry. If that tactic fails to produce a remedy, the housing provider may then move on to contacting local authorities.
First Response contd. Local Authority Notify the local health and fire authorities Local authorities may issue orders against the Owner which must be complied with The orders issued by local authorities may be enough to solve the problem without the housing provider having to incur a cost
First Response contd. Sections 84 and 85 of the Strata Property Act sets out how Strata’s and Owners are to deal with work orders issued by local authorities The occupancy agreements in housing co-ops generally have provisions making those agreements subject to the relevant and applicable zoning, health, or other laws of the municipal, provincial or federal governments.
5.0Legal Response 5.1Strata Property Response Bylaw 3 of the scheduled standard bylaws provides: Use of property 3(i)an owner, tenant, occupant or visitor must not use the strata lot, the common property or common areas in a way that a.Causes a nuisance or hazard to another person, b.Causes unreasonable noise, c.Unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot, d.is illegal
Legal Response contd. Section 173 of the Strata Property Act which provides as follows: 173 Other court remedies On application by the strata corporation, the Supreme Court may do one or more of the following: (a) order an owner, tenant or other person to perform a duty he or she is required to perform under this Act, the bylaws or the rules; (b) order an owner, tenant or other person to stop contravening this Act, the regulations, the bylaws or the rules;
Legal Response contd. (c) make any other orders it considers necessary to give effect to an order under paragraph (a) or (b). Consider if a ¾ vote resolution is required prior to commencing the action The application would require compelling evidence necessitating entry before a Court would order same.
Legal Response contd. 5.2Co-op Housing The obvious remedy to the co-op is to remove the member from possession of the unit. This can be done by two methods: Membership Termination under the Rules or Occupancy Agreement Termination Membership Termination A co-op members’ membership may be terminated for conduct detrimental to the Co- op or for breach of a material condition of the Occupancy Agreement. Hoarding probably falls under both of those categories.
Legal Response contd. The process for membership termination is complex and beyond the scope of this presentation but the general process is as follows: A hearing before the Board of Directors with the member; In order to terminate membership for conduct detrimental, the Board must pass a ¾ vote of all directors; The member has the ability to appeal the termination to the general membership at the next SGM or AGM where the decision of the directors has to be upheld by special resolution. The member has the right to appeal this decision to the Supreme Court of British of Columbia, although the grounds on which the appeal might be based are limited.
Legal Response contd. The Co-op Act and Regulations contain detailed instructions on how a member might appeal the various decisions they are faced with. Accordingly, terminations in this process could take months if the co-op is faced with a determined member. Occupancy Agreement Termination The Occupancy Agreement allows the Board of Directors to resolve to terminate the member’s occupancy agreement on 30 days notice. Although it is not provided for in the occupancy agreement, it is recommended that the co-op provide the member with a warning and a chance to rectify the situation before terminating with 30 days notice. Be careful of waiver arguments. A member who wishes to challenge the termination must do so before the Supreme Court.
Legal Response contd. Relief from forfeiture under the Law and Equity Act is available to the member and the Courts are not opposed to using that remedy sometimes without the member requesting it.
Legal Response contd. 5.3Landlord Response The Residential Tenancy Act contains tenant obligations regarding the state of the unit. Section 32 states in part: 32Landlord and tenant obligations to repair and maintain (2) A tenant must maintain reasonable health, cleanliness and sanitary standards throughout the rental unit and the other residential property to which the tenant has access. This is the provision that the Landlord would rely upon in the case of hoarding.
Legal Response contd. The Landlord’s remedy on a unrepentant hoarder is Section 47 which is termination for cause. The relevant sections are as follows: 47Landlord's notice: cause (1) A landlord may end a tenancy by giving notice to end the tenancy if one or more of the following applies: (d) the tenant or a person permitted on the residential property by the tenant has (i) significantly interfered with or unreasonably disturbed another occupant or the landlord of the residential property,
Landlord Response Landlord's notice: cause (Contd.) (ii) seriously jeopardized the health or safety or a lawful right or interest of the landlord or another occupant or (iii) put the landlord's property at significant risk; (f) the tenant or a person permitted on the residential property by the tenant has caused extraordinary damage to a rental unit or residential property; (h) the tenant has (i) failed to comply with a material term, and (ii) has not corrected the situation within a reasonable time after the landlord gives written notice to do so;
Landlord Response - 6 There is precedent in the Courts for removing hoarders from residential tenancies. Douglas v. Anavets Senior Citizens Housing Society, 2003 BCCA 182 pursuant to 47 (1) (d)
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