Kingsway Trailer Kort residents have received the gift of time this holiday season.
The Residential Tenancies Branch has ruled that the termination of tenancy notices handed to residents is invalid.
The decision gives hope to residents of the mobile home park who desire to stay despite being told they’ll have to move to make way for a new development.
The Residential Tenancies Branch offered the following reasons for its decision:
• A title search of this property shows that as of August 2011 the registered owner is Kingsway Kort Ltd... As the registered owner and landlord, Kingsway Kort is the corporation that was responsible to give notices of termination to the tenants.
Subsection 84 (1) of The Residential Tenancies Act says that notices of termination must be in the prescribed form and signed by the landlord. Dan Cayer signed the notices of termination at issue in his personal capacity and did not sign as the representative of the landlord, Kingsway Kort Ltd. Based on the evidence submitted, I find that the landlord of the residential rental complex did not give notice of termination of tenancy to the tenants as required by The Act, and the notice is therefore not valid.
• The Act says… a landlord may give a notice of termination to a tenant if the landlord intends in good faith to occupy or use a rental unit… The landlord cannot give notice on behalf of a third party or to further a third party’s use of property.
It is clear from the evidence that it is Brandon Evergreen Enterprises Ltd. who intends “to close Kingsway Trailer Kort” and to redevelop the property. There is no evidence as to the relationship between Kingsway Kort Ltd. and Brandon Evergreen Enterprises Ltd… I therefore find that the notices of termination were given to tenants to further the use of the property by Brandon Evergreen Enterprises Ltd. rather than the intended use of the landlord and that the notices of termination for this purpose are not valid.
• The reason stated in the notice of termination of tenancy given to the tentant is “… because the landlord intends to demolish your rental unit within six months after you move”… The landlord’s representatives at the hearing confirmed that an application was made to the City of Brandon for re-zoning the property. They also confirmed that it is intended to build other rental housing on the property. There was an indication that the developer and not the landlord has made the application for re-zoning. The landlord did not state in the notice the true intended reason for terminating the tenancies. This is a requirement under The Act and the landlord did not meet this requirement.
Furthermore, converting the current residential rental complex to another type of residential rental use is not a valid reason for terminating tenancies under The Act, and is not a valid reason under … The Act for giving a notice of termination.
» Brandon Sun
"We’ve got some little glimmer of light but it’s not fully opened," Kingsway Kort resident Liz Bhugwandeen said.
News of the void termination notice took the form of an order issued by The Residential Tenancies Branch on Monday. Representatives weren’t available to discuss the implications of the order.
However, Bhugwandeen said she hopes it will sway city council when it comes time to make a decision on rezoning for the proposed development.
"It might," Bhugwandeen said. "I’m hoping it affects, influences the decision of the City of Brandon for the rezoning application."
Council is set to hear the rezoning issue next Monday.
Last summer, Brandon Evergreen Developments announced plans to build four apartment buildings and a number of townhouses at the Kingsway Kort site (1640 Sycamore Dr. and 21 Willowcrest Ave.)
Evergreen issued eviction notices to residents last summer. They were told to move by March 31, 2014 (or June 30, 2014 for those with school-aged children.)
That deadline was later extended to Dec. 31, 2014 for those who agreed to sign compensation packages.
Forty-two tenants have accepted compensation packages and have either moved out or are expected to move out.
However, the eviction notices handed out last summer are now void due to The Residential Tenancies Branch order that is the result of a hearing held on Nov. 28.
Bhugwandeen and Kingsway Kort Ltd. had asked the branch to make a decision on the validity of the termination of tenancy notices.
The "landlord’s representatives" — who Bhugwandeen identified as Brandon Evergreen Developments representative, developer Aaron Dubois, and his lawyer — attended and gave evidence. So did a number of residents, including two by phone.
In the order issued on Monday, The Residential Tenancies Branch outlines the following reasons for declaring the termination of tenancy notices invalid.
Park tenants were given notice that their tenancy was terminated because the landlord, "intends to demolish your rental unit within six months after you move."
The notices were signed by Dan Cayer, whom a resident said remains the owner of the park.
The board noted that, as of August 2011, the title search showed the registered owner as Kingsway Kort Ltd. — under The Residential Tenancies Act, that’s the corporation that should have given the termination notices to tenants.
But Cayer signed the notices in his personal capacity, and not as the representative of the landlord, Kingsway Kort Ltd.
The board also noted that a landlord can’t give a notice of termination to further the use of a third party’s use of the property.
The board ruled that it’s clear that it’s Evergreen that intends to close the mobile home park and redevelop, but there’s no evidence of its relationship with Kingsway Kort Ltd.
The termination notices were therefore handed to tenants to further the use of the property by Evergreen, rather than the use of the landlord.
The board noted confusion over Evergreen regarding its contacts and negotiations with tenants and involvement in the project.
It also found that the landlord didn’t state the true intended reason for terminating the tenancies.
The notice stated: "the landlord intends to demolish your rental unit within six months after you move."
However, there’s an indication that the developer, not the landlord, has applied for re-zoning.
In addition, converting the current residential rental complex to another type of residential rental use isn’t a valid reason to terminate tenancies under The Act.
"The notices provided to the tenants are invalid for all the reasons set out above," the order states. "Therefore the landlord has not terminated the tenancies in accordance with… The Act."
That’s good news for Kingsway Kort resident Colby Rowson.
Unwilling to sign onto a compensation offer, he, his wife and two children had faced the prospect of having to move out of Kingsway Kort by July 2014.
With nowhere to move his mobile home near the city, Rowson was facing the possibility of selling it for what he could and then renting until he could find a new home.
While he doesn’t believe The Residential Tenancy Branch decision will put a stop to the development, it does buy precious time.
"Basically, it seems like they’ve bought us some time for now and we don’t have to worry about the previous eviction day," Rowson said.
Kingsway Kort Ltd. or its representatives have until Jan. 20 to file a Notice of Appeal.