Age Restriction Unenforceable? #234
CATEGORY: Legally Speaking
TAGS: Condominium Act GST
By Gerry Neely
The frequency with which these columns are dealing with Section 30 of the Condominium Act, and the decisions the courts apparently feel obliged to make as a result of the wording of Sections 29 and 30, make one hope that a new Condominium Act will soon be before the legislature.
Bylaws which limit the right to occupancy of a strata unit to people over a designated age may no longer be enforceable, as the result of a decision involving a Vernon strata corporation whose bylaws prohibited any person under the age of 50 years from occupying a strata lot for more than 21 days in total in any year.
Section 29 of the Condominium Act states that, "subject to Section 30, the bylaws shall not operate to prohibit or restrict the transfer, lease, mortgage or other dealings with a strata lot." As discussed in column #230, Section 30 only allows the strata corporation to limit the number of units which can be leased. The judge decided that the bylaw was unenforceable because the age restriction was an attempt to restrict the lease of a strata lot, an attempt which did not fall within the limited exception contained in Section 30.
In reaching his decision the judge referred to another case where a strata corporation bylaw required owners to occupy their units for at least 12 months before they could apply to lease them. This bylaw was held to be unenforceable as a breach of Sections 29 and 30.
Since the decision was not appealed it will be left to either the Court of Appeal or a new Condominium Act, to decide whether bylaws creating adult-only strata corporations can be enforced. It would appear that this decision will prevent a strata corporation from adopting the Human Rights Act age restrictions for rental occupants of a strata unit referred to in column #210. It is unlikely that the legislature intended to grant an exemption from prohibition against discriminating on the basis of age in connection with a rental unit, unless every rental unit was reserved for rental to at least one person over the age of 55, and yet have a Condominium Act which is interpreted to mean that age restrictions such as these cannot be enforced.1
In 1991 when the GST was relatively new and licensees had little knowledge of it, a licensee wrongly advised the buyer of rural property that no GST was payable. Since the buyer had relied upon this representation, the licensees were liable in damages equal to the amount of the GST of approximately $20,000. In reaching this decision the judge said that, as specialists in their field the licensees should be expected to be generally knowledgeable with respect to a number of basic matters concerning the property, including the taxes applicable to it and to its purchase.
In 1994, licensees honestly but mistakenly represented that no GST was payable upon the sale of a vacant lot owned by a company. Neither the seller nor the buyer were prepared to pay the GST, and the dispute came down to the completion date before it was resolved by an agreement which was made possible by the agent's decision to reduce its commission.
There is no doubt that there may be difficulty in determining whether GST is payable upon the sale of bare land, recreational or other personal use real property. Whether an exemption exists or not will depend upon a number of factors including how the property is owned, how it has been used, and how it will be used.
The judge may have been wrong in stating that, in his opinion, the buyers were entitled to assume that the licensee would know whether or not the GST applied to the sale of the property. There is no question, however, that he was right when he went on to say that if the licensee did not know, or was uncertain about the application of GST he should have made that clear to the buyer.
Since the answer to whether GST is to be paid depends so much upon the facts, a licensee should not hesitate to recommend that the owner seek the advice of a lawyer or accountant experienced in this area, and the owner should be prepared to take that advice to avoid potential litigation.2
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