Many strata corporations (particularly since the ability to restrict the rental of strata lots was taken away) want to limit the number of people who might take up residence in a strata lot. This desire can stem from a variety of concerns; unequal use of shared resources such as water; strain on limited parking; the potential for more noise; too many people coming and going. But can they actually do that?
The first thing to consider in answering that question is s.121(1) of the Strata Property Act (SPA) which provides:
(1) A bylaw is not enforceable to the extent that it
(a) contravenes this Act, the regulations, the Human Rights Code or any other enactment or law,
(b) destroys or modifies an easement created under section 69, or
(c) prohibits or restricts the right of an owner of a strata lot to freely sell, lease, mortgage or otherwise dispose of the strata lot or an interest in the strata lot.
On the face of it, an occupancy bylaw isn’t captured by any of those. It is not contrary to the SPA since s.119 of the SPA permits bylaws which regulate the use and enjoyment of strata lots. Nor does it expressly prohibit something which is protected under the Human Rights Code. Lastly, since it addresses occupancy in general it does not (any more than any other bylaw restriction does) restrict an owner from freely selling, leasing, mortgaging or otherwise disposing of their strata lot.
In addition, so long as the limitation applies to strata lots which are both owner occupied and those which are rented it would not be viewed as a restriction on the rental of a strata lot contrary to s.141 of the SPA.
However, it is in the application of such a bylaw that it can become problematic. S.8 of the Human Rights Code prohibits discrimination on a number of grounds, including family status. A person’s family status includes the size and composition of their family: Fakhoury v. Las Brisas Ltd (1987), 1987 CanLII 8549 (ON HRT), 8 CHRR D/4028 (Ont. Bd. Inq). Cha v. Hollyburn Estates Ltd., 2005 BCHRT 409. It can also include having a baby: Valdez v. Bahcheli and another, 2020 BCHRT 41.
The enforcement of an occupancy bylaw was discussed for the first time in the recent case of James and Rowland v. The Owners, Strata Plan VR1120, 2023 BCHRT 220. The bylaw in question limited the number of persons who could reside in a strata lot based on the size of the unit; i.e. two people in a one bedroom, three people in a one bedroom and den, etc. The complainants lived in a one bedroom unit with their two children (who were both born while their parents were living there). The strata corporation sought to enforce the bylaw and the owners argued that doing so amounted to discrimination on the basis of family status.
In considering whether or not to dismiss the claim against the strata corporation, the Tribunal accepted that “family status” was a factor at play given that the owners only ran afoul of the bylaw after they had their first child.
The Tribunal in Rowland recognized that a bylaw which is discriminatory can be justified if the strata corporation is able to show that:
(1) it adopted the bylaw for a purpose rationally connected to what it aims to achieve;
(2) it did so in an honest and good faith belief that it was necessary for the fulfillment of that legitimate purpose; and
(3) the bylaw is reasonably necessary to the accomplishment of that legitimate purpose;
The last step, however, involves a duty to accommodate an individual adversely affected by the bylaw to the point of undue hardship. In other words, to be able enforce the occupancy bylaw the strata corporation would need to show that having a family of four in a one bedroom unit would present an undue hardship. In the view of the Tribunal the strata corporation might meet the first two steps but likely wouldn’t meet the last one.
In reaching its decision the Tribunal noted that:
“enforcing bylaws equally can result in discrimination, and stratas must be careful not to strictly enforce a bylaw in a way that might have a discriminatory effect. In the housing context, the protection from discrimination based on family status “exists precisely to protect families, and others who may be screened out of tight housing markets, from being unjustifiably excluded from safe and secure housing”
It was not the bylaw that was the problem but the decision to enforce it against the owners which created a potential breach of the Human Rights Code.
From the decision in Rowland it is clear that occupancy limit bylaws have their limitations. While such a bylaw will apply to limit the number of roommates living together in a strata lot, it will not necessarily limit the size of families. A strata corporation which enacts an occupancy bylaw needs to be prepared to consider accommodation requests where the number of family members exceeds the limit. That must be done on a case by case basis, done objectively and any refusal must be based on a verifiable undue hardship. It is not enough to say that owners as a whole don’t want large families.
Strata corporations considering occupancy bylaws will need to weigh whether or not there is any utility in having such a bylaw and if so what number of occupants might be justifiable on the basis of undue hardship. Those numbers may not be as low as the owners wish.
This article is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is lawyer whose practice focuses on strata property law. He frequently writes and lectures for strata associations. He is a partner with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or shawn@clevelanddoan.com. He can be followed on Twitter @stratashawn.
