Condominium Age Restriction Upheld #259

By Gerry Neely
B.A., LL.B.

Another decision concerning the right of a strata corporation to pass by-laws limiting occupancy to those of advancing years and to prohibit the rental of any strata units. This case arose out of the occupancy of a unit by parents in their seventies, and a son who was forty-eight, in 1990, when the condominium was purchased in the names of the parents.

In 1995, a by-law was approved reserving the occupancy of each unit for individuals fifty-five years of age and older, with the exception of spouses, or of visitors who could stay for up to one month in any twelve month period. Owners were liable for a fine of $250 for each week the by-law was breached. In addition, the by-law prohibited the rental of any unit.

When it became apparent to the parents that the strata council might evict their son, they commenced an action for an order prohibiting the strata council from doing this, and for a declaration that the age restrictions and rental prohibition were invalid. While the council agreed to the order prohibiting eviction of the son, the action with respect to the other two matters continued.

The parents argued that the age restriction was unfairly prejudicial to them because it limited the number of potential buyers, for although buyers under age fifty-five could purchase units, they could not occupy them. They were unable to support this argument with the expert evidence the judge said they needed, since the age restriction might actually increase the demand within the age group who would be entitled to occupy an unit.

They used the same age restriction argument with respect to the limitation of their right to lease strata lots. This argument brought in the Human Rights Act, which prohibits discrimination on the basis of age with respect to a rental unit unless, as occurred here, the by-law reserved occupancy of each strata unit to at least one person fifty-five years of age or older. They also said the Condominium Act did not give a power to a strata corporation to limit rentals based upon age, or to prohibit all rentals.

We have two Acts in conflict, the Condominium Act which only allows a strata corporation to limit the number of units that may be leased, and the Human Rights Act which allows discrimination based upon age. The judge held that the human rights legislation must prevail over the Condominium Act, since it defined public policies concerning matters of a general and fundamental concern.

The result was that the by-law imposing the age restriction was upheld. The by-law prohibiting leasing was set aside.

This last decision was well reasoned and took fully into account the Human Rights Act. It is now the third decision in which judges have held that the Condominium Act only allows strata councils to limit the number of units that may be rented. it does not allow them to prohibit rentals entirely. Only one case supported prohibition. Until someone takes this issue to the B.C. Court of Appeal, it is very likely that other judges reviewing condominium by-laws that prohibit, rather than limit rentals, will find them to be unenforceable.

With this decision, the combined effects of the Human Rights Act and the Condominium Act are that a strata corporation may pass a by-law restricting age, if the restriction is of the kind found in the by-law referred to in this case. While the age restriction does not prevent someone under that age from purchasing a unit, it does prevent that person from occupying the unit.

Apart from the agreement made between the strata corporation and the son, the judge's decision that the bylaw was valid would have given the strata council the right to evict the son, although a judge would be sympathetic to any reasonable argument that was made. However, in the case discussed in Column #144, a child was born to a couple living in an apartment under a tenancy agreement prohibiting children. The parents were unsuccessful in having the court set aside the notice to vacate given to them because of the birth of the child.¹

1.

Marshall v. The Owners, Strata Plan #NW2584, B.C.S.C., Reasons for judgment, August 1, 1996.

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