Lawyer believes options still exist for renters, B.C. Assessment to get involved
Time has all but run out for a Prince George couple to take their case to the Supreme Court of Canada after the B.C. Court of Appeal dismissed their appeal against the municipality’s zoning bylaw that prohibits tourist accommodation on RS1 (residential) zoned properties.
And now the municipality is cracking down on other illegal operators.
The appeal court dismissed the case of Miller/Rivera on May 29, after which time the owners of the residence on Clifftop Lane had 30 days to make an appeal to the Supreme Court. They may have made that appeal but the Supreme Court may decide not to hear the matter.
With the Supreme Court and Appeal Court on its side, the municipality is approaching people who have offered "illegal" properties for rent and asking them to sign a letter of consent that they would not rent their homes out in the future.
Jonathan Baker, the lawyer for Millera and Rivera, says the municipality has currently taken action against six of his Whistler clients.
The RMOW is also targeting the people who book or advertise illegal rental properties.
On Monday, June 17 at 10 a.m. the municipality is holding a Show Cause hearing for Allura Direct (www.alluradirect.com), an Internet company that charges property owners an annual fee to list their properties for rent on their site. More than 370 properties are listed, including residences that aren’t zoned for tourist accommodations.
The municipality alleges Allura is supporting and facilitating illegal rentals.
The Show Cause hearing will be held in council chambers. People wishing to speak at the hearing are asked to sign a speakers list at municipal hall prior to 10 a.m. June 17.
But while the municipal bylaws were validated by both the B.C. Supreme Court last year and the B.C. Court of Appeal this year, Baker believes that the Appeal Court essentially left the door open by not specifically addressing any of the new arguments that he presented during the hearing.
"There are different sets of facts that apply to other TA renters that didn’t apply to the Millers. They might decide not to appeal, and we would fight the next one vigorously based on the new information we have," says Baker.
According to Baker, who is counselling renters not to sign the municipal consent forms, there are several possibilities for home owners who wish to rent their properties to tourists on a short-term basis:
• If a home has been rented continuously since 1989, the owner could argue that it is in non-conforming use since before the bylaw existed. As a result these properties could be grandfathered, or exempted from the bylaw because their use had been established before the bylaw existed;
• If a home is rented out once, or very rarely, they could argue that the bylaw should apply differently because their primary use is not tourist accommodation;
• The date in which houses were built and sold is also important in relation to the bylaw, which was written in 1989 and amended in 1994. Some rentals could be exempt if they precede those dates;
• Baker also recently came into possession of a letter from the municipality in January 1996 that suggested that it was okay to rent your main unit but, not your auxiliary unit or suite. The letter also mentioned that the municipality would be changing the bylaw again, which backed Baker’s claim in the Miller/Rivera case that the wording of the bylaw was flawed.
"As it stands now, the municipality will be leaving the wording in the bylaw because they probably feel there’s no need to change it," said Baker. "It’s always risky changing something that has been construed by court. Change would take the bylaw out from underneath the decision."
While the municipality might have won its battle against Miller and Rivera, Baker believes that the circumstances are different for other renters, and the precedent won’t apply to all cases as a result.
Resort’s reputation could suffer from illegal accommodation
John Richmond describes himself as, "A disgruntled tourist accommodation property owner who’s income dropped 25 per cent last year. I operate a legal, fees paid, taxes paid, property taxes paid tourist rental accommodation."
He said he was delighted to hear that the B.C. Court of Appeal threw out the Miller/Rivera appeal, and doubts whether the Supreme Court of Canada will hold a hearing on the issue.
His concern now is the quality of the tourism industry in Whistler, which is crucial to his own business, Whistler’s Very Best, which owns and operates two tourist accommodation-zoned townhouses on Cedar Ridge.
"I’m very much in favour of enforcing zoning," he said. "I honestly don’t think it would come to the point where they would evict a guest from a property that was illegal, rather I would think they would take action against the owner or the rental company.
"My concern is if an illegal operator was called to task and forced to shut down operations, and then didn’t do the moral thing to contact their guests and tell them the accommodation wasn’t available. The aftermath to Whistler businesses could be devastating."
All it would take would be a few letters to ski publications, and Whistler "will get a reputation of operating a sleazy underground accommodation network, and that our accommodation network on the Internet is not reliable," he added.
Another practice that is currently damaging is something renters are calling the "bait and switch" – people rent homes online that are approved for tourist accommodation, but when they arrive they are directed to other homes that are not TA approved, usually in a residential neighbourhood.
"Tourism Whistler is working with tourism rental companies to make sure that the operators will divest themselves of any illegal properties. If these companies have clauses in their contracts saying that guests may be moved to other houses, and many of them do, then there should be a statement somewhere that they will be switched to another TA-zoned property," said Richmond.
While the municipal enforcement will affect some companies in the short-term, in the long run it’s better for companies to operate with legal properties.
According to Richmond, one British company that operated six properties in Whistler last year, only one of them legal, was taken over by another company this year. The first thing that company did was to cut its ties with home owners that were offering properties illegally because of the legal and insurance issues.
