Renoviction Ruline Highlights Inconsistencies in RTB decisions

Renoviction Ruling Highlights Inconsistencies in RTB decisions

Published in the Westender

03/02/2011 12:00 AM

Mark Moore says the Residential Tenancy office is shrouded in secrecy and stacked against renters. Credit: Jessica Barrett

Mark Moore, Christine Brandt and Andrew Simmons stood outside the West End’s Seafield Apartments on a bitingly cold Wednesday morning trading war stories.

The trio had turned out to support 15 of the building’s tenants who last week learned they’d successfully fought mass evictions by their landlords, Gordon Nelson Investments Inc. But as the press conference dissipated, the three neighbours lingered to recount their own David-and-Goliath battles against landlords who’ve been attempting to evict entire buildings in the West End.

The Seafielders may have won this time, but the way these neighbours see it, the victory highlights serious inconsistencies in rulings by dispute resolution officers with the Residential Tenancy Branch (RTB) and an overall lack of transparency in the bureaucratic framework intended to protect renters’ rights.

“Really, it’s not a very transparent system at all,” says Simmons, a resident at nearby Emerald Terrace, who has successfully fought eviction by landlord Hollyburn Properties.

“No it’s not, there’s no sunshine, which is really antithetical to a democracy,” replies Brandt, joined by her partner Moore. After leading the fight against evictions in the building, the couple and their young son were evicted from the Seafield in mid-October after a dispute resolution officer (DRO) rejected their argument the order to vacate their two-bedroom suite to make way for a live-in property manager had been made in bad faith.

Moore says the experience was the last straw in dealing with a system that, in his opinion, seems shrouded in secrecy and stacked against renters. “We don’t know who these people are, we don’t know how they get their jobs, we don’t even know what their first names are because  they’ll only give you an initial,” says Moore of the DROs in charge of hearings at the RTB.

A look at decisions posted by the provincial agency illustrates his point. Want to find out if a certain landlord or tenant has a habit of showing up in dispute resolution hearings? Tough. Decisions published on the RTB site have been scrubbed of all identifying details of the parties involved. Wondering whether a certain DRO has a tendency to side with landlords over tenants, or vice versa? No dice. There won’t be any details on the individuals deciding the case, either.

According to a spokesperson for the Ministry of Public Safety and Solicitor General, qualifications for DROs include “experience in binding and legal decision-making in an administrative law setting,” but publicly released decisions by the RTB are stripped of identifying details in order to protect the privacy of participants.

“All decisions are published and universally accessible, however identifying information is removed from them,” the spokesperson wrote in an e-mail to WE. The e-mail also explained “the RTB has the same jurisdiction as the Provincial Court, and the decisions belong to the participants.”

But while decisions released by provincial courts and virtually every other quasi-judicial body in B.C., such as the BC Human Rights Tribunal or the Employment Standards Tribunal, clearly state identities of arbitrators and disputing parties in most cases, the RTB is exempt.

For renters like Simmons of Emerald Terrace, that practice seems engineered to keep renters in the dark about landlords’ track records. “So you can look at 10, 20, 30 decisions online and not know that it’s 30 decisions in a row against the same landlords,” he says.

Lawyer Scott Bernstein with PIVOT Legal Society, agrees the practice is dubious and unique among legislative tribunals in the province.

“I think it really speaks ill for accountability of dispute resolution officers and the Residential Tenancy Branch as a whole,” he told WE in a phone interview. “When you choose to litigate something in the courts, you have to make a special application for having your name taken off the header… I think maybe it should be the same way.”

Having information of the parties and arbitrators publicly available would help renters identify pattern behaviours, Bernstein continued.

“It would reveal systemic issues of how landlords treat their tenants and take care of the buildings and so on.” PIVOT currently has a mandate to conduct legal outreach on renters’ issues, he added.

Whether landlords’ records should be taken into account in dispute resolution hearings is another issue facing renters. Bernstein stopped short of saying DROs should be compelled to take previous decisions against landlords or tenants into account in dispute hearings, but there should be more consistency in rulings by the RTB.

“If your neighbour got one kind of a ruling from one dispute resolution officer and you bring in the same facts and the same situation against the same landlord, you should have the same ruling,” he said.

For many West End residents that has not been the case. Sharon Isaak of the non-profit group Renters at Risk cites her experience in 2006 when landlord Hollyburn Properties were evicting residents, floor-by-floor, from Bay Towers to conduct renovations.

“We had mixed decisions coming out of the RTO. I won, and then every other floor lost and the arguments and the evidence were identical,” she said. “It was this storm of mixed decisions coming out… it was this whole mentality of divide and conquer.”

Former Seafielders Moore and Brandt are still dismayed by their unsuccessful dispute hearing last October. A copy of the decision in their case supplied by the tenants shows the DRO, identified only as D. Bryant, refused to allow them to present previous tenants as supporting witnesses. Nor did he take the landlords’ prior behaviour in evicting previous tenants, or their unsuccessful bid for a 73-per-cent rent increase, into account. However the past behaviour of Gordon Nelson Investments figured prominently in the most recent decision by one D. Vaughn, another DRO, who ruled in favour of the remaining Seafield tenants who’d claimed their eviction notices had been issued in bad faith.

“They’re given a lot of latitude what evidence to accept,” said Moore of the adjudicators. “They don’t have to follow the kind of rules of evidence that a court would. They can decide what evidence they want to hear, what evidence they don’t want to hear.”

A spokesperson for the ministry explained the discrepancy between the two cases was due to differing evidence. “The applications for this particular matter were not for the same things, the evidence differed, therefore, the outcome was different,” she wrote.

WE’s request for an interview with Rich Coleman, the minister in charge of the RTB, was denied.

reporter@westender.com

West End Renters Triumph Against Landlords

NEWS: West End renters triumph against landlords

Source: The Westender
By: Jackie Wong
01/21/2010 12:00 AM

After more than a year of tenant-landlord conflict, residents of the West End’s Seafield apartment building were relieved last week to learn that the rent increases applied for by their landlords were overturned by the B.C. Supreme Court. The January 12 judgement by Supreme Court Justice Linda Loo called the landlords’ application for 15- to 38-per-cent increases in the 78-year-old building “patently unreasonable.”

A B.C. Supreme Court judge declared it “unreasonable” that the landlords of the West End’s Seafield apartment building (pictured) applied to increase rents by up to 38 per cent. Credit: Jackie Wong

Madame Justice Loo ordered the landlords — a brother-in-law duo who own Gordon Nelson Investments, a property management firm that purchased the Seafield in summer 2008 — to refund tenants the difference of the increased rents they had paid since April 2009, the month in which a dispute-resolution officer at the B.C. Residential Tenancy Office (RTO) controversially approved Gordon Nelson’s application for the increases. The landlords argued the increases would bring the Seafield, a 14-unit building located at 1436 Pendrell Street, up to market value.

The Seafield’s close-knit community of long-term tenants banded together to bring the dispute before the Supreme Court in November 2009, in the hope of drawing attention to what they and other tenants’ rights advocates saw as unfair legislation.

Seafield tenants will likely start receiving refunds in the form of deductions on upcoming months’ rents, although this has not been confirmed. But the tenants aren’t sure when or if they’ll be back in court, in the event that their landlords appeal the judgement. Property manager Chris Nelson told WE in an e-mail that he and Gordon Nelson Investments partner Jason Gordon will make a decision within the 30-day time frame allowed for appeal.

A statement on Gordon Nelson’s website says the company is confident that the Seafield rent increases will be restored in a re-hearing or “quite possibly result in a larger market-supported rent increase, as rents in Vancouver and the West End have continued to increase in the face of tough economic times.”

A representative from the B.C. Ministry of Housing and Social Development, who asked not to be named in this article, told WE the ministry is currently reviewing the Supreme Court decision, and that a new hearing will be scheduled in the near future.

The rent-increase issue is the last in a long line of disagreements between Seafield tenants and Gordon Nelson Investments. In fall 2008, WE reported that Seafield tenants felt threatened by Gordon Nelson’s intimations that tenants would be evicted to make way for building renovations. “After only a month of living here, I was being told I was going to get kicked out of my own home,” recalls Seafield tenant Melissa Mewdell. “I had no idea what to do about it. If these guys weren’t around to help me,” she adds, gesturing to her neighbours, who have supported each other through the conflict, “I probably would have left.”

Even though the disputes have resulted in Seafield tenants becoming extremely well versed in residential tenancy procedure, the lack of transparency they’ve experienced at the RTO has been troubling, says Mark Moore, who lives at the Seafield with his family. “You can’t find out how many of these cases there are [at the RTO]. You can’t find out how they were decided. There are no transcripts kept of any hearing. If this is where things are going to be adjudicated… it would at least be nice to know what’s going on here. This is notwithstanding the fact that we never know how many people are evicted who never go to the RTO because they don’t complain.”

Vancouver-West End MLA Spencer Herbert has been working with Seafield tenants and other local renters during their lengthy struggles with the province’s residential tenancy system. As part of efforts to resolve what he sees as gaps in B.C.’s Residential Tenancy Act that leave long-term renters vulnerable to unfair rent increases, Herbert brought forward a private member’s bill in November 2008. It has not yet been reviewed in the B.C. Legislature.

“I really hope that Housing Minister Rich Coleman will look at [the Seafield] decision and will look at the evidence, which is piling up, and decide that the Residential Tenancy Act needs to be reformed,” Herbert says. “B.C. renters owe a huge debt of thanks to the Seafielders for their perseverance, but think about the huge number of people out there who don’t have those resources, who don’t have that sense of community to support each other.”

Seafield Tenants win at BC Supreme Court – Landlord Denied 38% RTO Rent Increases

Seafield Tenants win at BC Supreme Court –Gordon Nelson Investments Denied 38% RTO Rent Increases and Ordered to Refunds  Tenants

January 13, 2010
Sharon Isaak

The Seafielders and BC renters won a monumental victory at the BC Supreme Court today. Madame Justice Loo’s decision overturned the RTO’s decision giving 15-38% rent increases to the Seafield’s new owners, Gordon Nelson Investments Inc,  and ordered refunds  of  the   additional rent increases the tenants have already paid resulting from the RTO decision.

In April 2009, Dispute Resolution Officer K. Miller delivered an unprecedented RTO decision ordering up to nearly $500/month increases to some tenants at the Seafield.  The DRO’s decision was based only on several higher priced units chosen from the landlord’s evidence, and she refused to consider the tenants extensive evidence showing their units were priced similarly to other comparable units in the same geographic area, and in line with current CMHC guidelines for average rents in the area.

However, BC Supreme Court Justice Loo disagreed with the DRO’s decision, and overturned it based on patently unreasonable errors in law and fact. The DRO’s refusal to consider the tenants evidence was at the heart of the appeal. The matter is remitted back to a new DRO at the RTO for another hearing.  This is not the first time DRO K. Miller’s decisions have been overturned at Judicial review on this very issue of additional rent increases.

The BC Residential Tenancy Act limits yearly rent increases to 3.7% in 2009,  except under a relatively new 2004 RTA Regulation that allows landlords to apply for additional rent increases in a geographic area on units “significantly” below rents in the area.  Soaring rents over the last three years have triggered some landlords to use this clause as a way to catch up  longer term renters to peak market values in an area and get around yearly  rent increase limits, which was not the intent of the regulation.

This is a huge victory and the first bright light for BC renters since the Berry Court Decision in 2007 overturning DRO K Miller’s Renoviction decision at Bay Towers.  It means a landlord doesn’t just get a free ride to to leverage the “Geographic Area Increase  clause for easily obtained and exorbitant market rent increases based on a few top priced rental units in the area as evidence.  Tenants will now have a stronger legal leg to stand on if they fight similar additional rent increase cases at the RTO.

BC Renters owe a large debt to the Seafield tenants, who have lived under extreme stress since the building was bought by Gordon Nelson Investments over a year ago, and yet had the courage, determination and support, to see this case through to the Supreme Court of BC.

The four key points overruling the RTO decision are:

• That the Dispute Resolution Officer (DRO) “failed to comply with the statutory requirement” by not considering the Tenants’ evidence. Madam Justice wrote: “…the Officer must consider the Tenants’ relevant submissions. It defies common sense to imagine an affected tenant…would make a submission showing that there are rental units that attract higher rents.”

• That the DRO was “patently unreasonable” in awarding the landlord an above normal rent increase when the landlord had only two “comparable” units demonstrating their case. (In contrast, our evidence – which was disregarded – contained scores of comparable units, in some cases even identical, at similar or lower rents). She wrote: “…it is doubtful that s. 23(1)(a) requires merely two comparator units.”

• The DRO made an error of law by basing her analysis on rents before (rather than after) the regular annual rent increase (3.7%) permitted under the law;

• The Judge concluded that “the officer made a patently unreasonable factual error” when the DRO granted the rent increase based on apartments that were not, in fact, comparable to units at the Seafield by her own admission.

NEWS: Rent hikes threaten residents of housing complex

NEWS: Rent hikes threaten residents of housing complex (Mole Hill)

Posted By: Jackie Wong
05/21/2009 12:00 AM
Arwen Brenneman (left) and fellow residents of the West End’s Mole Hill housing complex are facing substantial rent increases that may force them to move out.  Credit: Doug Shanks

Arwen Brenneman (left) and fellow residents of the West End’s Mole Hill housing complex are facing substantial rent increases that may force them to move out. Credit: Doug Shanks

It’s not easy these days to raise a family in Vancouver on a modest income, but living in affordable rental housing should help to make the financial burden a little lighter. That’s why Arwen Brenneman and her husband, John, applied to live in the West End’s Mole Hill housing complex when they decided to have children. But a rent increase recently issued to them and other tenants who pay low market rates in the complex is forcing them to rethink their plans.

“If this goes through, we’ll probably [have to move] out to New Westminster,” says Brenneman, whose family has lived in Mole Hill for six years. “We made choices based on initiatives that were… to try to support middle-income people [who chose to live] downtown for all sorts of very good reasons,” she says, adding that she wants her children to grow up within the diversity of the West End. “But I feel like we’re a social experiment that’s been abandoned.”

Mole Hill, a collection of West End heritage homes behind St. Paul’s Hospital (between Pendrell and Comox Streets), was saved from demolition as the result of extensive community activism throughout the 1980s and ’90s that eventually led to the revitalization of the houses, as reflected by their current incarnation. Mole Hill housing units range in size from bachelor to three-bedroom suites, 60 per cent of which are subsidized (rents are determined by calculating 30 per cent of residents’ incomes), and 40 per cent of which are market housing at the low end of market rates, usually 10 to 15 per cent less than what the market charges.

Brenneman’s family now pays $1,068 per month for its two-bedroom, 850-square foot apartment, with no amenities such as laundry rooms in the building. Rent increases will see that rate rise to just below $1,400 in two years. Brenneman, a part-time web consultant, is the primary caregiver for her two young sons, while her husband works as a network technician (he was laid off twice in the past year as a result of the economic downturn). Like many young parents, Brenneman is saddled with lingering student-loan debt and prohibitive childcare fees. “Last year, I made about $25,000, but I spent about $10,000 on childcare,” she says. “And I’m working to go back to school… I’m not sure whether that will happen or not, but it does mean we are in sort of temporary poverty.”

Brenneman says one-bedroom apartments will be hardest hit, with 48-per-cent rent increases over the next two years, which tenants first heard about in December 2008. Affected tenants have filed for a joint arbitration (scheduled for July 17) at the Residential Tenancy Office to dispute the rent increases. In the meantime, Brenneman has seen her neighbours start making plans to move out of the community, which has long been known for its long-term tenants. “My next-door neighbour, he’s got three kids; he’s already given notice,” she says. “The stress is too much.”

Margot Beauchamp, executive director of the Mole Hill Housing Society, has dealt with the difficult task of liaising between BC Housing, the volunteer board of the Mole Hill Housing Society, and tenants. “We were between a rock and a hard place,” she says of the rent increases. “[BC Housing] suggested that they would not solve this problem for us, and we had to go to the Residential Tenancy Act and exercise the part of the Act that says a landlord can, in fact, exceed the allowable amount [of a rent increase] if they can prove that there are similar rents in the community that are charging more, and/or if they can prove that they’re in a financial deficit situation — which are both true, in our case.”

Beauchamp says the rent increases are a necessary course of action to resolve a deficit in Mole Hill’s operating agreement with BC Housing. “We’re not doing this in order to increase our profit,” Beauchamp says. “We’re doing this in order to have a balanced budget and continue to operate as a housing society, and that’s mandatory. It’s part of our operating agreement with BC Housing.”

Terry Lavender, a longtime West End renter who chairs the Mole Hill Housing Society, doesn’t predict a positive outcome from the rent increases at Mole Hill. “We certainly hope it doesn’t become a gentrification of Mole Hill,” he says. “None of the board members would want that… That’s not why we’re here. But we may be forced into that if we’re forced to raise rents.”

A spokesperson from BC Housing requested not to be quoted in WE.

West Enders lose rental hike dispute

A group of West End renters are seeking a judicial review after the Vancouver Residential Tenancy Branch ruled in favour of their landlord’s request to hike their rents 38 percent.

“We’re very disappointed and that’s an understatement,” says Seafield tenant Tim Pawsey. “It’s a huge amount of money [and] I haven’t really absorbed it [the ruling] yet.”

The Residential Tenancy Act (RTA) allows landlords to raise residential rents by 3.7 percent annually. But landlords can apply for an additional increase if they can prove the increase will put their units on par with the area’s market value.

Pawsey, who has lived at 1436 Pendrell St for 30 years, says the public was not immediately informed of the Apr 7 decision due to legal processes. He says he can’t comment further on the decision since he and his neighbours are now seeking a judicial review.

“This decision, if it stays as is, effectively means the end of any sort of rent control in BC,” says gay Vancouver-Burrard MLA Spencer Herbert.

“It’s pretty shocking but this is the legislation that the BC Liberals brought in and it has been used by landlords to hike rents like we said it would,” adds Herbert, who is running for re-election with the NDP in the new Vancouver-West End riding May 12.

Herbert says the RTA decision reflects an unbalanced Act full of loopholes that benefit landlords.

“This decision is bad because it is based on bad legislation,” says Herbert. “This kind of thing shouldn’t be happening.”

“It’s Christmas every day for landlords now,” Stephen Hammond of RentersFightBack.com said in a statement.

“It’s just a matter of time before every BC landlord applies for excessive rent increases, and thanks to Gordon Campbell, they’ll get it,” he predicts.

“Gordon Campbell doesn’t give a crap about renters, and it’s time we mobilized to fight back and kick him out,” adds Christine Ackermann, also with RentersFightBack.com.

If the ruling is allowed to stand, the Seafield tenants are looking at a 38 percent rent increase as of Aug 1.

But the building’s owner, Gordon Nelson Investments, says the rental hike still isn’t enough.

“We are disappointed that we didn’t receive the full amount, but we respected the process,” says co-owner Chris Nelson.

The Nelson and his business partner Jason Gordon had asked for rent increases of up to 70 percent for a two-bedroom suite.

Herbert introduced a private member’s bill in the BC legislature last November to eliminate the section of the RTA that allows landlords to raise rents above the allowable limit to the market value in a particular area.

He says the only way the RTA will be balanced is if the BC Liberals are overthrown at the ballot box May 12.

“The landlords have tried to use any means they can. The BC Liberals have been pretty clear about not changing the RTA,” Herbert told Xtra West in March.

“I think the RTA is the only tool we have to ensure tenants rights are protected,” retorts lesbian Liberal candidate Laura McDiarmid, who is running against Herbert in Vancouver-West End.

“We need to be fair to everyone,” McDiarmid says. “If the RTA has loopholes, it is like any other act. It is fluid and needs to be revised.”

McDiarmid says she would have to review the current RTA before commenting on what changes, if any, are needed to existing RTA legislation; something she promised will happen if she wins the Vancouver-West End seat.

Herbert says the NDP has reviewed the act and are ready to reform it. “If we form government we will change the law to make sure we have balance between landlords and tenants,” he promises, adding that BC renters need to take an active stand against uncontrolled rent hikes regardless of who gets elected.

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