Eviction for landlord's use was legitimate, despite owners' partial move, B.C. court rules

North Vancouver is seen from CTV News Vancouver's Chopper 9 in June 2019. (Pete Cline)

A B.C. judge has upheld the eviction of a family from their North Vancouver townhouse, finding that the landlords did not take an unreasonable amount of time to move into the home after the tenants vacated it.

Gabriela Sefcikova and Kamil Sefcik sued their former landlord Sandra Bayliss – along with Orca Realty Inc., the property management company she used – in B.C. Supreme Court.

The couple sought more than $90,000 in damages, alleging that Bayliss and her spouse Lucy Hollis had evicted them in bad faith and did not occupy the property within a reasonable time frame after the eviction.

For a variety of reasons, Justice Sandra M. Sukstorf rejected the tenants' arguments and dismissed their case in a decision issued Friday.

Dispute not taken to RTB

Evictions for landlord's use of property have grown more common since the B.C. government cracked down on "renovictions" in 2021, according to tenant advocates.

While it's legal for a landlord to issue an eviction notice if they or a close family member plan to reside in their property, the province's Residential Tenancy Act requires them to demonstrate that they're acting in good faith if the tenant challenges the eviction.

B.C.'s rent control rules – which cap the amount a landlord can raise a tenant's rent within a 12-month period – mean long-term tenants typically end up paying rents well below the market rate.

Last year, the maximum allowable rent increase was 3.5 per cent. There is no cap on the amount a landlord can increase the price of a vacant unit, however, meaning landlords benefit financially when an old tenant moves out and a new one moves in.

In recent years, some landlords have pursued evictions for landlord's use of property in order to get old tenants out and increase rents for future tenants. Bad-faith evictions for landlord's use have been described by advocates as "an epidemic," and the provincial government announced plans earlier this month to crack down on the practice.

Under current rules, landlords who fail to follow through on plans to occupy their property within a reasonable time, or who fail to stick to those plans for at least six months, can be forced to pay their former tenants 12 months' worth of rent.

Tenants who suspect a landlord is attempting to evict them in bad faith typically challenge their evictions at a hearing with an arbitrator from the province's Residential Tenancy Branch.

Sefcik and Sefcikova opted not to go that route, however, instead taking their case directly to the courts.

The rationale for doing so, according to Sukstorf's decision, was that they were seeking damages above and beyond 12 months' worth of their former rent.

That amount equated to $46,200, or $3,850 per month. The plaintiffs also sought $12,048 for moving expenses, $5,500 for "searching and visiting prospective accommodations," and $10,000 each for Sefcik, Sefcikova and their daughter for "distress."

Claims totalling more than $35,000 cannot be heard by the RTB, unless the total amount sought represents only a claim for 12 months' rent. Because of the additional compensation Sefcik and Sefcikova sought, Sukstorf concluded the B.C. Supreme Court had jurisdiction to hear the case.

No 'principal residence' requirement

According to the court decision, the plaintiffs moved into the property on Chesterfield Avenue in July 2018. At the time, Bayliss and Hollis were living with their two young children in Logan Lake, B.C.

The decision indicates both women work for mining company Teck Resources Limited, and it was a promotion for Hollis that required relocation to the Vancouver area that triggered the eviction.

Orca Realty, acting on behalf of Bayliss and Hollis, served Sefcikova and Sefcik with a two-month notice to end their tenancy in late November 2021. The eviction notice indicated that the owner would be occupying the property, and gave the tenants a deadline of Jan. 31, 2022, to move out.

Hollis' new job started Dec. 1, 2021, and she moved into the North Vancouver property on Feb. 7, 2022, according to the court decision. The rest of the family remained in Logan Lake until Bayliss got a job in the Vancouver area and joined Hollis in June of that year.

The plaintiffs argued that the property was not "occupied" by the landlords until the full family moved in, noting that they visited the townhouse on a variety of dates in March, April and May of 2022 and observed it to be empty.

They also questioned the discrepancy between Hollis' start date and the date she began occupying the property.

Sukstorf found these arguments unpersuasive, noting that Hollis' occupation of the property was likely intermittent, given that her family was in Logan Lake, but that the available evidence suggested she was using the property for the purpose stated in the eviction notice.

"Contrary to what the tenants have argued and predicated their submissions on, there is no requirement for the landlord to occupy the property as a primary or principal residence," the judge's decision reads.

"The (Residential Tenancy Act) does not require the property to be Ms. Hollis’ primary or principal residence, nor does the RTA specify a minimum frequency of how many nights she was required to stay there. Rather, for the purposes of the RTA, the law focuses on whether the landlord genuinely occupied the property as per their stated intention or purpose. Similarly, the RTA does not specify the amount or type of furniture that must be in the property as long as the occupancy is consistent with the stated intention and the RTA."

On the question of dates not aligning, Sukstorf was similarly dismissive, noting that COVID-19 restrictions were still in place and changing regularly in late 2021 and early 2022.

"The evidence of the tenants … suggested that Teck employees were working remotely until at least November 2021, so it was not only reasonable to seek a later occupancy date, particularly with the holiday period falling in December, it was also both fair and prudent to do so," the decision reads.

"The fact that Ms. Hollis slept on a mattress when she was in Vancouver for work and she regularly returned to Logan Lake to visit her family on weekends, joining them on ski trips or even working from Logan Lake, does not detract from the fact that her occupancy in the property while in Vancouver for work is consistent with the intended purpose set out in the notice."

Accordingly, Sukstorf dismissed the plaintiffs' claim and awarded court costs for Hollis and Bayliss. However, she declined to award special costs to the defendants.