AGE RESTRICTIONS BYLAWS by Shawn Smith
The subject of age restriction bylaws is one the most divisive in condominium law. I often get phone calls from real estate agents, owners and strata council members asking me to advise them on the validity of an age restriction bylaw. I often qualify my comments to them as this issue, despite the introduction of the Strata Property Act, is still somewhat unclear. I will attempt, in a brief fashion, to clarify the state of the law.
Section 123(2) of the Strata Property Act (the Act) by implication approves the passage of an age restriction bylaw. It reads as follows:
It should be noted that this section refers specifically to the age of a person who resides in the strata lot. An age restriction bylaw which states that a person under a certain age cannot own a strata lot contravenes not only this section but also section 121(1) which prohibits a bylaw that restricts the right of a person to sell or otherwise dispose of a strata lot. Such a bylaw is not enforceable.
The two most commonly asked questions (which I will answer in the order posed) with regard to age restriction bylaws are:
The Act unfortunately does not state an age for use in such a bylaw. There are, in my opinion, two different schools of thought on this subject. The first is that any age can be used (e.g. no persons under 30 years of age can occupy a strata lot). In such an instance the bylaw would apply to all strata lots except those, which are rented (whether by way of a bylaw permitting rentals or on a hardship basis). Such a bylaw would not apply to strata lots being rented by virtue of the provisions of section 5 of the Human Rights Code which states that one cannot discriminate in the rental of residential premises on the basis of age unless the age being used is 55 years. Using this example, a strata lot could therefore be rented to a person under 30 years of age despite the fact that an age restriction bylaw exists.
The second school of thought (to which I adhere) is that 55 years is the only acceptable break point to be used. I base my opinion on the language used in two cases dealing with age restriction bylaws under the Condominium Act. The first of these is the case of Marshall v. Strata Plan No. NW 2584. In that case the strata corporation passed a bylaw which stated that every strata lot is reserved for the use of individual(s) 55 years of age and older. Mr. and Mrs. Marshall unsuccessfully challenged the validity of that bylaw and the court upheld it. In doing so the judge made reference to the provisions of the Human Rights Act, stating:
In the case of 453048 British Columbia Ltd. v. Strata Plan KAS 1079, the court held that an age restriction bylaw which restricted the occupancy of a strata lot to persons 50 years of age or older was declared invalid because it contravened the Human Rights Act by using an age other than 55 years.
On the basis of these two decisions I would contend that the only permissible age to use is 55 years, since that is the benchmark set by the Human Rights Act. The use of any other age would likely render the bylaw void. (Certainly the bylaw would not apply to strata lots being rented).
With regard to the second question; to whom does such a bylaw apply? The Act is quite clear that it does not apply to a person (owner or occupant) residing in the strata lot at the time of the passage of an age restriction bylaw and who continues to reside there after the bylaw is passed. Note that this grand fathering provision applies only to persons residing in the strata lot. There is not any grand fathering for the strata lot itself or for absentee owners, or spouses, children or other relatives of a person residing in the strata lot.
Another aspect to this question is whether not an age restriction bylaw applies to the rental of a strata lot to a family member under section 142 of the Act. The Act unfortunately does not address the interaction of these two sections and there is no reported case law on the subject. In my opinion, the age restriction bylaw would apply in such case and would prevent the rental of a strata lot to a family member despite section 142. The logic behind this reasoning is that to allow such a gaping whole in the age restriction bylaw would render it useless. The Legislature, in drafting section 123(2) clearly intended to allow the creation of buildings oriented towards a particular age group (i.e. seniors). However, until this is tested in the courts the answer will remain unclear.
As a final note on the subject, it has recently come to my attention that the Canada Mortgage and Housing Corporation will not, as a matter of policy, insure mortgages for strata lots in strata corporations that restrict occupancy to persons of a particular age group. They consider this to be a restrictive practice. Thought should be given to this in other marketability issues when a strata corporation is considering passing an age restriction bylaw.
Shawn M. Smith is an associate lawyer with the law firm of Cleveland & Doan located in White Rock and may be reached at 536-5002. This article is intended for information purposes only and nothing contained in it should be viewed as the provision of legal advice.