Vancouver landlord acted in bad faith in attempted eviction for caretaker use, arbitrator finds

Bethany Lindsay · CBC News

· Posted: Dec 12, 2023 8:00 AM EST | Last Updated: 11 hours ago

A Vancouver property management company acted in bad faith when it tried to evict a tenant to make space for a live-in building caretaker, B.C.’s Residential Tenancy Branch has found.

As a result, an arbitrator has now cancelled the four-month notice to end tenancy that Plan A Real Estate Services served on Vancouver renter Mauricio Carvallo in July.

The decision says that just a few months before Carvallo received the eviction notice, one of his longtime neighbours in the west side building had signed a mutual agreement to move out, also on the understanding that a live-in caretaker needed her apartment.

But instead of moving in a caretaker as planned, Plan A re-listed the neighbour’s unit for rent at a significantly higher price, before notifying Carvallo of his impending eviction for caretaker use.

The arbitrator writes that Plan A made the decision to re-rent the first apartment to “maximize its rental income.” Under B.C. tenancy law, someone who voluntarily gives up a rental home has no recourse if their former unit isn’t used by a caretaker as promised.

“I find it likely that the landlord decided to re-rent the neighbouring rental unit, despite securing it for the caretaker, on the basis that it could generate higher rental income and that there was no risk the landlord would be subject to a compensation claim from its former occupants,” the Nov. 17 decision reads.

“Under these circumstances, I find that the landlord issued the four-month notice in bad faith as it already had a rental unit for the caretaker to occupy.”

Carvallo told CBC the decision came as a relief, especially considering the deadline on the eviction notice was Nov. 30, just two weeks after his hearing.

“There was this immense pressure, stress about what happens if I have to move with very short notice,” he said.

He described himself as a good tenant who pays his rent on time, doesn’t cause any problems for his neighbours, and hasn’t damaged the property in any way.

“I just want to have a place to live and I hope that this doesn’t lead to any other problems further down the road,” he said.

Anoop Majithia, Plan A’s executive director, said the company disagrees with the decision and is considering applying for a judicial review.

“We believe this decision was biased and the legislation has been misinterpreted or misapplied. Plan A has live-in caretakers at multiple buildings it manages and has never been accused of acting in bad faith,” he told CBC in an email.

Landlord’s reasoning ‘makes little sense’

The caretaker provision in B.C.’s Residential Tenancy Act allows a landlord to serve a tenant with a notice of eviction if their unit is earmarked for a building caretaker. Advocates at the Tenant Resource and Advisory Centre have warned that some landlords are using it as a loophole to replace existing tenants with new ones paying higher rent.

Carvallo and his former neighbour, Reina Goto, told CBC earlier this year that Majithia had called both of them in December 2022, saying there were plans to evict a tenant from their eight-unit building so a caretaker could move in.

Goto said she was left feeling guilty that her neighbour might be evicted if she didn’t volunteer to leave. Rather than waiting for an eviction notice, she and her partner signed a mutual agreement to vacate by June 30, 2023, and then moved out at the end of April.

According to evidence Carvallo presented during the Residential Tenancy Branch (RTB) hearing, Goto had been paying $1,535 per month. When Plan A replaced her with new tenants, their rent for the same unit was $2,375 — a 55-per-cent increase.

At the RTB hearing, Carvallo argued that he and Goto were targeted because their rent was the lowest in the building.

Majithia testified that when Goto moved out, he had not yet found a caretaker to move in, so he re-rented it. He told the hearing that Carvallo was given the eviction notice once a suitable caretaker agreed to move in.

The arbitrator found Majithia’s reasoning questionable.

“I agree with the tenant that it makes little sense to plan for a caretaker in late 2022 if there was not someone in mind,” the decision says.

“Nor does it make sense, in my view, to set an effective date for the mutual agreement to June 30, 2023 if the landlord did not plan to have someone ready to move into the neighbouring rental unit in July 2023.”

The arbitrator’s decision means that Carvallo will be allowed to stay in his apartment at the current rent of $1,449 per month.

“I hope that this [decision] can help other people further down the road if they ever need some sort of guidance for how things might play out,” he said.