As a follow up to our recent Bulletin about the Green Acres decision of the Landlord and Tenant Board (LTB), which found that the Residential Tenancies Act (RTA) did not apply to a seasonal park, we now have a decision that takes the analysis one step further. Kristin Ley of Cohen Highley LLP successfully argued that the RTA does not apply to “seasonal” occupancies even if there are also “year round” occupancies in the Park which are covered by the RTA.
In Paul Bunyan Trailer Camp Limited v. Saraiva (Paul Bunyan), the campground operation had both seasonal and year round sites. The campers in this case had claimed the RTA applied since their trailer had been on the site for the past 18 years; the structure, with additions, would be impossible to move; and, the annual lease had been renewed for 18 years. The camper also argued that there were other “year round” tenancies in the park and the main entrance was open and snow was ploughed in winter, all of which supported findings that the RTA applied.
The LTB disagreed with the camper and held the LTB did not apply. Of particular importance was the License agreement and the consistent protocols followed by the operator and the camper each year. The campsite in questions was not provided with water in Winter (lines cleared) and the agreement between the parties provided for a “seasonal” site fee, plus winter storage fees as a separate charge. The seasonal permit was renewed annually. The fact that other mobile home sites were subject to the RTA was not determinative of the issue for the specific site in question. As in Green Acres,the LTB held that a camper could not, through his unilateral actions and breach of the license agreement, transform a seasonal occupancy into a residential tenancy covered by the RTA.
The Paul Bunyan decision and the recent Green Acres decisions of the LTB will assist campground operators in ensuring their seasonal operations are not made subject to the RTA. Operators should review the decisions and note the features that the LTB Member found persuasive in arriving at determinations that the RTA did not apply, and then ensure that your own operations are consistent with “best practices”.