Nov 01, 1993

Adult Only Buildings and the Human Rights Act #210


By Gerry Neely
B.A, LL.B.

How do amendments to the Human Rights Act (HRA) affect a developer pre-selling strata residential units in an intended adult only development? Amendments to the HRA enlarged the definition of age to include anyone between 19 and 64 years inclusive, and added family status as one of the prohibited discriminatory practices in the rental of real estate.

The result of these recent amendments is that HRA still does not prevent restriction based upon age or family status in the sale of residential property. However, a landlord renting a rental unit in residential premises cannot discriminate on the basis of age or family status, unless every rental unit is reserved for rental to:

a person over 55 years of age or; two or more persons, one of whom must be at least 55; or a rental unit in a prescribed class of residential premises (none prescribed as yet).

The HRA does not define family status, but it probably will be broadly defined because human rights law, "is given as broad and liberal an interpretation as is necessary to achieve its remedial purposes." It will not be as narrow as the Residential Tenancy Act definition which has been repealed, that a family was "two or more persons who will live together and includes a parent and a child of that parent."

The developer of an adult only strata development can refuse to sell a unit to anyone under any age the developer chooses, or refuse to sell to a family because that family includes a child. The purchaser of a unit, who wants to rent it, cannot refuse to rent to any family containing a child. The purchaser can refuse to rent to anyone under age 19 because of that person's age, but not if that person is part of the family. (This will pose a dilemma for a purchaser, as landlord, when the prospective tenant is an underage mother and her child.)

The ideal bylaw amendment for an adult only strata corporation would be a bylaw which limited not only the number of units available for rent, but reserved each rental unit for one tenant over 55, and none of the other co-tenants could be younger than whatever age the developer considered appropriate to maintain the adult orientation of the development.

This amendment may not be possible. The Condominium Act allows a strata corporation to limit only the number of residential strata lots within the strata plan that may be leased by the owners. Apart from this right to limit numbers, the Condominium Act states that the bylaws may not operate to prohibit or restrict the lease of a strata lot. An amendment to restrict the age of tenants appears to be beyond the authority of a strata corporation.

The best the owner/developer may be able to do to retain the adult only residential strata development, would be to limit the number of strata lots available for rent. Developers will have to decide whether they want to tie their hands in this manner, or leave the question of limiting the number of units available for rent to the members of the strata corporation.

A developer or strata corporation that wanted to maintain an adult only building would have to decide whether the strata corporation, in exercising its power to limit the number of units to be leased, may prohibit leasing entirely. That question was raised in a B.C. case where the bylaws prohibited the rental of any residential strata lot except where the owner could prove hardship under Section 32 of the Condominium Act. In that case the strata council had the power to approve the lease.

An owner who objected to this bylaw argued that limiting was not equivalent to the prohibition which this bylaw imposed. The owner's argument was, in order to limit a number, some number more than zero is required. The judge, however held that the owner's right to a hearing and the strata council's obligation to hold such a hearing, under Section 32, gave the owner something more than zero. He held the bylaw to be valid.1

(The question of existing strata bylaws limiting occupancy to people over a certain age will be discussed in the next column.)

 1. Von Schottenstein v. Owners, Strata Plan 730, 64 B.C.L.R., p. 376.

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