Soaring Housing Prices and Single Family Restrictions in Condominiums
With soaring housing prices, it is no wonder people are sharing homes more than might have been common a decade or two ago. Sometimes it is extended family, like grandparents, siblings, aunts, uncles, and cousins. Other times it is a group of students or friends. Sometimes there is no relationship between the occupants at all.
Many condominiums have a “single family” or “one family” residence restriction in its documents. The language is usually something like: the units shall be used and occupied as a single family residence only and for no other purpose. Shared housing arrangements may be contrary to these restrictions.
Who determines if a group of people are a family? Are these restrictions even legal?
In Nipissing Condominium Corp. No. 4 v. Kilfoyl the Court of Appeal upheld the single family residence restriction within the condominium’s declaration. The term "family" was defined broadly as “a social unit consisting of parent(s) and their children, whether natural or adopted, and includes other relatives if living with the primary group.” The Court determined that there was no violation of the Human Rights Code. The owners also filed a complaint with the Human Rights Tribunal, but it was dismissed as the courts had already ruled on the matter.
Can the restriction be in a rule if it is not in a declaration? What happens if the term "family" is not defined?
In Chan v. Toronto Standard Condominium Corp. No. 1834 the court upheld a single family restriction within a rule. The rule provided that each unit was “to be occupied and used only as a private single family residence and for no other purpose.” The rule did not define the term “single family”. The owner argued that a group of unrelated renters would satisfy the definition as they were living as friends together sharing the unit, not as roomers or boarders. The court disagreed and relied upon the definition from the Kilfoyl decision. The decision was upheld on appeal.
While a single family clause in a declaration or rule will likely be enforced by the courts in many cases, there are circumstances that may make these clauses unenforceable, either throughout the condominium, or more commonly, with respect to a particular individual. For example, if an owner with a disability has a friend live with them as a caregiver, condominiums should seek legal advice before seeking to have the caregiver removed from the unit as it could have a duty to accommodate the owner according to the Human Rights Code.
What can a condominium do if it has not enforced its single family restriction?
Where there has not been enforcement of a single family clause for many years, the board should send notice to the owners to inform them that the condominium will be enforcing the restriction. The notice should give owners a reasonable amount of time to comply as landlords cannot evict their tenants in a matter of days. It takes time.
Alternatively, if the restriction no longer suits the community, it could be removed from the documents if the board and owners are supportive of removing it. These restrictions are normally in the declaration, meaning the condominium must collect the consent of at least 80% of the units to amend it. If it happens to be only in a rule, it would be much easier to change. In this case, the board would send notice of its proposed change to the rules. If owners do not requisition a meeting within 30 days of the notice, the rule change becomes effective on the 31st day after the notice. If the owners requisition a meeting within 30 days of the notice, the rule becomes effective at the meeting if there is not quorum at the meeting or, if there is quorum, the owners do not vote against it.
Alternative View – Shift Your Focus
Enforcing single family restrictions can be challenging for a variety of reasons. How do you prove someone is not in a relationship? How do you prove they are unrelated?
Instead of creating new rules or declaration amendments that focus on the relationship between the occupants, enforce existing rules that prohibit the nuisance behaviours that people are often trying to indirectly address with these single family restrictions. For example, many condominiums already have rules that prohibit excessive noise and limit the number of parking spaces per unit. If the concern is excessive utility usage, the condominium could consider submetering the units. Alternatively, the condominium could create an occupancy standards by-law that would allow the condominium to levy an additional assessment against units that are occupied by more individuals than the by-law allows.
Thanks to John G. for this topic suggestion!