Strata Meeting - An Amendment to a Special Resolution #211
By Gerry Neely
Column #210 discussed the impact upon adult only condominium developments of amendments to the Human Rights Act concerning discriminatory practices based upon the age or family status of a prospective tenant.
The next issue is the validity of strata corporation bylaws that restrict occupancy based upon age. Will these restrictions be struck down because of Section 22 of the Human Rights Act, which states that where there is a conflict between a provision of the Act and a provision of any other Act, the Human Rights Act prevails?
A strata corporation with a bylaw restriction of no less than forty-five (45) years should be able to enforce this restriction to prevent an owner from sharing occupancy with anyone under that age. In addition, while the strata corporation could not prevent someone under that age from purchasing a unit, the bylaw could be enforced to prevent the owner from occupying it.
However, unless the bylaws prohibit rentals, the strata council may be unable to prevent the rental by the under-age owner of the unit to a minor who is part of the owner's family, or to an adult under the age of forty-five (45).
A strata corporation willing to risk litigation to preserve adult only status might consider altering its bylaws to reserve all units available for rent to those within the Human Rights Act, fifty-five (55) years of age or over rule discussed in Column #210 and repeated below1, even though that is probably a breach of the Condominium Act.
If challenged, the strata council would ask the court to find that a rental restriction is unenforceable because of the provisions of the Condominium Act, then there is a conflict between the two Acts. The conflict, it would be argued, should be resolved in favour of enforcing the bylaws on the basis that under Section 22 the strata corporation is entitled to the benefits, as well as the burdens imposed by the Human Rights Act. The benefit would be to incorporate the over fifty-five (55) rule in the strata corporation bylaws.
A full list of the prohibited anti-discrimination practises for tenancy premises follow. All of them, except age and family status, apply to the seller of the property.
"race, color, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age."
Most, if not all, strata councils know that their bylaws can only be amended by special resolutions approved by the members at a meeting, of which notice of the proposed bylaw amendment has been given. A more difficult question for the chairperson of the meeting of strata corporation members is when to accept an amendment to a bylaw that has already been circulated to members who are not in attendance at the meeting.
In one case an amendment was proposed, which if adopted would prohibit more than five (5) adult persons from occupying a strata lot without the approval of the strata council. An amendment to this amendment was moved at the meeting to change the bylaw to, "not more that five (5) adult persons of age forty-five (45)." The bylaw as amended was approved, but was then challenged by two owners under that age who were not at the meeting.
The challenge was successful because the judge concluded that the strata corporation had failed to give the members the notification required under the Condominium Act, which would in the ordinary way inform the members of the change to be voted upon. The chairperson should have refused to allow the further amendment, and suggest instead that a fresh notice of the proposed amendment be given to all members, to be voted upon at another special meeting.2
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