Age Restriction Bylaws

A strata corporation may adopt an age restriction bylaw and enforce it.

Adopting An Age Restriction Bylaw

The statutory bylaws do not restrict the age of persons who may reside in a strata lot. 1 If desired, a strata corporation may amend its bylaws to restrict the age of persons who reside in a strata lot. 2

Exception In A Phased Strata Development

There is, however, an exception where a strata corporation may not amend its bylaws to adopt an age restriction.

The exception occurs in some phased strata developments. If certain conditions exist in a phased development, the strata corporation may not make, modify or repeal a bylaw to restrict the age of occupants, unless particular requirements are met.

Specifically, so long as the developer in a phased development complies with the dates in the Phased Strata Plan Declaration, or in an amended Declaration, for the beginning of construction of each phase, the regulations state that the strata corporation may not create, change, or repeal any bylaws dealing with, “the age of occupants”  3 until one of the following occurs: 4

  • the annual general meeting is held following the deposit of the final phase, or
  • in accordance with the Strata Property Act, the developer elects not to proceed with the next phase, or
  • the Supreme Court of British Columbia declares that the developer is deemed to have elected not to proceed, or
  • the strata corporation obtains the written consent of the developer.

Note that here the regulations refer to a bylaw dealing with, “the age of occupants.”  5 The Strata Property Act defines the term occupant to mean a person, other than an owner or tenant, who occupies a strata lot. 6 By contrast, in the Strata Property Act the relevant age restriction provisions refer to persons who reside in a strata lot. 7 Given the definition of the term occupant, it is not clear why this restriction extends only to bylaws dealing with occupants, and not to age restriction bylaws concerning residents, who are typically owners and tenants. This may simply be a legislative oversight.

Marketability Of A Strata Lot

Sometimes an owner opposes the adoption of an age restriction bylaw on the ground that the bylaw will unreasonably restrict the owner’s right to sell the owner’s strata lot. In other words, if an age restriction bylaw exists, then to the extent a buyer wishes to reside in the strata lot, the owner, as seller, is limited to selling it only to those who meet the bylaw’s age requirements.

The Strata Property Act states that a bylaw is not enforceable to the extent that it prohibits or restricts the right of an owner of a strata lot to freely sell, lease, mortgage or otherwise dispose of an interest in the strata lot. The Act, however, specifically exempts an age restriction bylaw from the application of this provision. 8

Grandfathering

A bylaw restricting the age of persons who may reside in a strata lot does not apply to someone residing there when the bylaw is passed. 9 In other words, a person residing there when the bylaw is passed is exempt from it. This is sometimes informally called grandfathering.

The Strata Property Act does not define the term reside. According to the British Columbia Court of Appeal, a person who wishes to claim this exemption from an age restriction bylaw must show some permanency to their use of the strata lot. 10 Many factors may contribute to residency. The Court has previously said: 11

For a person to reside in a strata lot does not require the place to be that person’s exclusive or even primary abode. The court said, in part, 12

So, a person may reside in a strata lot even if that place is one of several homes the person uses, regardless whether it is a secondary residence.

Enforcing An Age Restriction Bylaw

A strata corporation may enforce its age restriction bylaw.

In the past, a strata corporation had different enforcement rights, depending whether it enforced the age restriction against an owner or a tenant. In 2009, amendments to the Strata Property Act removed this distinction, making an age restriction equally enforceable against an owner or a tenant.

This chapter explains both the 2009 amendment and the way the law worked before that amendment.

Background

The provincial Human Rights Code is a statute that governs how persons treat one another in their private dealings with each other. Depending on the activity under consideration, the Code prohibits discrimination on various grounds, unless the activity is otherwise exempted.

If there is a conflict between the Code and any other statute, the Code prevails. 13

When someone wishes to enforce an age restriction, the Human Rights Code distinguishes between enforcement against an owner or a tenant. One may always enforce an age restriction against an owner, but never against a tenant, except in one case. The exception where one may enforce an age restriction against a tenant is where the restricted age is at least 55.

The Human Rights Code, however, exempts some situations from the Code. The Code does not apply to an age restriction if a statute specifically permits a distinction based on age. The Code says: 14

In 2009, the provincial government relied on this provision to change the law regarding age restriction bylaws, as explained below.

The 2009 Amendment

Effective December 11, 2009, 15 the provincial government amended the Strata Property Act to specifically permit age restriction bylaws. The Act says, 16

In other words, the Act now expressly permits a strata corporation to pass a bylaw that restricts the age of persons who reside in a strata lot. This change makes it easier for a strata corporation to enforce an age restriction bylaw.

Enforcing An Age Restriction Bylaw After The 2009 Amendment

Since the 2009 amendment to the Strata Property Act specifically permits a strata corporation to pass a an age restriction bylaw, the Human Rights Code exempts the age distinction. To the extent the bylaw makes an age distinction, the Human Rights Code does not apply. In other words, so long as an age restriction bylaw otherwise meets the requirements for enforceability, the strata corporation may enforce its age restriction bylaw against every resident equally, regardless whether the person is an owner or a tenant.

Enforcing An Age Restriction Bylaw Before The 2009 Amendment

The following describes the situation before December 11, 2009, when the provincial government amended the Strata Property Act. Since then the law has changed, as explained above.

When The Human Rights Code Applied

Before the 2009 amendment to the Strata Property Act, the Human Rights Code applied to a strata corporation’s age restriction bylaw, with this result. A strata corporation could enforce its age restriction bylaw against an owner, but never against a tenant, with one exception. The only time a strata corporation could enforce its age restriction bylaw against a tenant is where the restricted age was at least 55 years old.

How The Human Rights Code Affects A Tenant

The Human Rights Code prohibits discrimination against a tenant on various grounds. In particular, the Code prohibits discrimination on the basis of the tenant’s age or family status, except in two situations. 17

The Human Rights Code defines the term age to mean, “an age of 19 years or more and less than 65 years.” The Code does not define the term family status, but the phrase is used to refer to being married, or living in a marriage-like relationship, or to familial relationships, including having children. 18

When renting premises, the Human Rights Code says, in effect, that there are only two situations where an owner, or a strata corporation, may discriminate against a tenant on the basis of the tenant’s age or family status. These occur where:

  • Every rental unit is subject to a bylaw that restricts occupancy to persons who have reached age 55 (or, if two or more persons, at least one of whom has reached age 55), 19 or
  • The rental unit is within a class of residential premises prescribed by regulation. 20

Although the Human Rights Code permits discrimination against a tenant on the basis of age or family status if the rental unit is within rental premises prescribed by regulation, there are no such rental units at the time of this writing. The provincial government has not yet enacted the necessary regulation.

Result For A Tenant Before The 2009 Amendment

Since the Human Rights Code applied to a strata corporation’s age restriction bylaw, the corporation could only enforce it against a tenant where the restricted age was at least 55 years old. 21

How The Human Rights Code Affects An Owner

In the case of an age restriction bylaw, the Human Rights Code treats a purchaser differently from a tenant. Although the Code uses the term purchaser rather than owner, for our purposes the reader may view a purchaser as a person who, upon purchasing a strata lot, becomes an owner.

The Human Rights Code prohibits discrimination on various grounds against a person who purchases a dwelling unit. 22 The Code prohibits discrimination because of a purchaser’s race, colour, ancestry, place of origin, religion, marital status, physical or mental disability, sexual orientation or sex. Notably, in the case of a purchaser, neither age nor family status is listed among the prohibited forms of discrimination, as they are with a tenant.

Result For An Owner Before The 2009 Amendment

Since the Human Rights Code does not prohibit discrimination against a purchaser of a strata lot based on age or family status, prior to the 2009 amendment a strata corporation could enforce its age restriction bylaw against the purchaser who, by virtue of the purchase, became an owner. 23

Conclusion

This information describes the situation before December 11, 2009, when the provincial government amended the Strata Property Act. Before that date, a strata corporation had to enforce its age restriction bylaw differently, depending whether enforcing it against an owner or a tenant. On December 11, 2009, the law changed. A strata corporation may now uniformly enforce its age restriction bylaw, whether against an owner or a tenant.


 

Notes:

  1. For information about statutory bylaws, see Chapter 19, Statutory Bylaws and the Effect of the Strata Property Act.
  2. Strata Property Act, s. 123(1.1),(2). For information about amending a bylaw, see Chapter 20, Amending Bylaws.
  3. Strata Property Regulation, s. 13.3(2)(c).
  4. Strata Property Regulation, s. 13.3(2). For information about phases, see Chapter 31, Phases.
  5. Strata Property Regulation, s. 13.3(2)(c).
  6. Strata Property Act, s. 1(1) (definition of “occupant”). For example, see Strata Plan VR 2213 v. Duncan, 2010 BCPC 123, where the court found that certain persons were occupants within the meaning of the Strata Property Act when they occupied a strata lot for short term vacation stays. In that case, there was no intent to create a landlord tenant relationship; rather, the guests occupied the strata lot under a form of license agreement.
  7. Strata Property Act, s. 123.
  8. Strata Property Act, s. 121.
  9. Strata Property Act, s. 123(2).
  10. The Owners, Strata Plan NW 499 v. Louis, 2009 BCCA 54, rev’g in part 2008 BCSC 759 (sub nom The Owners, Strata Plan NW 499 v. Kirk).
  11. Kamloops (City) v. Northland Properties Ltd., 2000 BCCA 344 at para17.
  12. The Owners, Strata Plan NW 499 v. Louis, 2009 BCCA 54 at para. 26.
  13. Human Rights Code, R.S.B.C. 1996, c. 210, s. 4.
  14. Human Rights Code, s. 41(2).
  15. Strata Property Amendment Act, 2009, S.B.C. 2009, c. 17, s. 18 (amends the Strata Property Act, s. 123) and B.C. Reg 312/2009.
  16. Strata Property Act, s. 123(1.1).
  17. Human Rights Code, s. 10.
  18. Human Rights Code, s. 1 (definition of “age”). See, for example, Bellefleur v. Campbell, [2002] B.C.H.R.T.D. No. 12, 2001 BCHRT 12 at paras 79-81; and Campbell v. Shahrest, [2001] B.C.H.R.T.D. No. 36, 2001 BCHRT 36 at paras 58-59.
  19. Human Rights Code, s. 10(2)(b)(i).
  20. Human Rights Code, s. 10(2)(b)(ii). See also North Vancouver (District) v. Fawcett (1998), 60 B.C.L.R. (3d) 201, 1998 CanLII 4205 (C.A.) at paras 10-13.
  21. For examples of how this scheme protects tenants from age restrictions, see Fear v. Giasson, [1997] B.C.H.R.T.D. No. 6 at para 19; Martin v. Grove Mobile Home Park, [2000] B.C.H.R.T.D. No. 45, 2000 BCHRTD 45.
  22. Human Rights Code, s. 9.
  23. See, for example, Drummond v. Strata Plan NW 2654, 2004 BCSC 1405.