Planning on having a baby in your condo? Check your Strata’s age restrictions

STRATA AGE RESTRICTION BYLAWS

Strata age restriction bylaws are alive and well.

When providing any accommodation, service or facility customarily available to the public, the provincial Human Rights Code normally prohibits one person from discriminating against another because of the other person’s age or family status, unless there is a bona fide, reasonable justification.1 But, the Strata Property Act specifically permits a strata corporation to pass an age restriction bylaw.2 A strata corporation may enforce its age restriction bylaw against any resident, regardless whether he or she is an owner or a tenant. If a strata corporation passes a new bylaw restricting the age of persons who may reside in a strata lot, that bylaw, once registered at the Land Title Office, will not apply to any person residing there when the bylaw was passed and who continues to reside there.3

Whether acting as listing or buyer agent, the Real Estate Council of British Columbia expects a REALTOR® to review a strata corporation’s bylaws for restrictions, including age restrictions.4 One must never assume from signage or advertising alone that a strata corporation is age restricted. Conversely, one must never assume from the presence of children that they are permitted in a complex.

The Real Estate Council also warns against the common misconception that a developer or a strata council can waive the application of an age restriction bylaw. The wording of the bylaw is critical. A strata council has no power to exempt someone from an age restriction bylaw unless the particular bylaw expressly says so. In one recent case, the strata corporation’s bylaws restricted residency to persons who had reached 55 years of age.5 When an elderly owner died, her 46-year-old daughter inherited sole ownership of that owner’s strata lot. Apparently assuming that strata council could exempt her from the age restriction bylaw, the daughter wrote to strata council asking for permission to reside in the strata lot.

Since there was nothing in the bylaw giving strata council authority to excuse the daughter from the bylaw, strata council refused her request. The daughter then moved in anyway. The strata corporation successfully sued the daughter for a declaration that she was residing in her strata lot in violation of the age restriction bylaw. The strata corporation also obtained judgment against the daughter for a total of $13,400 in fines at $200 per week for her continuing bylaw breach.

If the wording of an age restriction bylaw permits strata council to exempt someone from the bylaw, strata council is never compelled to do so. In Drummond v. Strata Plan NW2654, the strata corporation’s bylaw restricted residency to persons over 19 years old, unless strata council gave specific written approval otherwise, with each approval to be considered on its own merits.6 After occupying a strata lot with her 13-year-old son, an owner asked strata council to exempt her son from the bylaw. When strata council refused, the owner sued the strata corporation, claiming significant unfairness. The court dismissed the owner’s claim. The strata corporation was reasonably justified in enforcing its bylaw. Just because the decision seemed unfair to the owner did not mean there was significant unfairness contrary to the Strata Property Act.

What if a resident in an age restricted complex gives birth to a baby? In Hallonquist v. Strata Plan NW307, the strata corporation’s bylaw prohibited children under 19 years of age from permanently residing in the complex.7 When the owner bought his strata lot, he knew about the age restriction. Roughly a year later, the owner’s wife gave birth to a baby. In an effort to comply with the bylaw, the owner listed his unit for sale, but was unable to sell it. The strata corporation imposed fines for breach of the bylaw and threatened a court application to remove the child from the complex. Eventually, the owner complained to the British Columbia Human Rights Tribunal that the strata corporation discriminated against him on the basis of family status. The Tribunal dismissed his complaint, pointing out that the Strata Property Act allows the age restriction bylaw and the strata corporation must enforce it.

Mike Mangan
B.A., LL.B.
Biography

1.
Human Rights Code, RSBC 1996, c. 210, ss. 8 and 41(2).

2.
Strata Property Act, SBC 1998, c. 43, s. 123(1.1).

3.
Strata Property Act, s. 123(2).

4.
Real Estate Council of British Columbia, Professional Standards Manual, online: https://www.recbc.ca/psm/disclosure-of-restrictions-on-use/.

5.
The Owners, Strata Plan NWS3075 v. Stevens(13 July 2017), Vancouver S172207 (BCSC); 2018 BCSC 1784. See also Strata Plan NW3075 v. Stevens, 2018 BCPC 2.

6.
Drummond v. Strata Plan NW2654, 2004 BCSC 1405.

7.
Hallonquist v. Strata Plan NW307, 2014 BCHRT 117.

Copyright British Columbia Real Estate Association (BCREA). Reprinted with permission. BCREA makes no guarantees as to the accuracy or completeness of this information or the currency of legal information.