Enforcement of a "One Family" Clause in Condominium Declarations

Enforcement of One Family Requirement in Condominium Declarations Post by: Carly Haynes We have noticed in recent court decisions the imposition of a restrictive definition of “one family” or “single family”[1] residence in condominium declarations where the term is not otherwise explicitly defined in the condominium declaration. It is our concern that the application of this definition may result in unintended discriminatory practices based on family status or lack of family status and may not be supported by an analysis of the relevant case law. The definition of “one family” residence which has recently been applied by the Ontario Courts seems to arise from a case involving Nipissing Condominium Corporation No. 4 whose declaration defines a family as: “a social unit consisting of parent(s) and their children, whether natural or adopted and includes other relatives if living with the family group” The declaration of Nipissing Condominium Corporation No. 4 further provides: (1) Each unit shall be occupied only as a one family residence. For the purpose of these restrictions "one family residence" means a unit occupied or intended to be occupied as a residence by one family alone, including guests, and containing one kitchen, provided that no roomers or boarders are allowed. A "boarder" for the purpose of these restrictions is a person to whom room and board are regularly supplied for consideration and a "roomer" is a person to whom room is regularly supplied for consideration. (2) Notwithstanding any definition or provisions in any By-Law of the City of North Bay, no unit shall be used in whole or in part for any commercial or professional purpose involving the attendance of the public at such unit. Without limiting the generality of the foregoing, no unit or part thereof, shall be used as an office by a doctor, dentist, optometrist, drugless practitioner or other professional person.” In our experience the foregoing declaration provisions are unusual if not unique.  In short, few other condominium declarations in Ontario attempt to define what constitutes a family for the purpose of enforcing a single family or one family residency restriction. The facts in Nipissing Condominium Corporation No. 4 v Kilfoyl 2010 ONCA 217 (“Kilfoyl”) are quite straightforward, despite the potentially far reaching implications of the decision.  The condominium corporation applied to the court for a compliance order to enforce the declaration’s residency requirements. The declaration, as noted above, stipulated that each unit could be occupied as a one family residence only.  The Respondent resident, on whom the case centers, rented his units to unrelated persons.  The Respondent argued that it was unreasonable to restrict occupancy based on familial relations, and that such a restriction amounted to a violation of the Human Rights Code (“the Code”), as a unit owner leasing his unit would be forced to reject or accept lessees based on their family status. The Ontario Court of Appeal enforced the motion judge’s decision which found that this section of the Declaration did not breach the Code, and that the Respondent was obliged to respect the condominium’s declaration.  The court further found the condominium was justified in enforcing its unique definition of one family residence. It is noteworthy to mention that this case was brought before the Ontario Human Rights Tribunal, who deferred to the Ontario Court of Appeal and also found no breach of the Code, see Kilfoyl v. Nipissing Condominium Corporation No. 4, 2010 HRTO 1036. The Kilfoyl decision was relied on in Chan v Toronto Standard Condominium Corp. No. 1834, (“Chan”) which was also affirmed by the Ontario Court of Appeal.  In Chan, the court found that the unit owner Chan breached the condominium declaration provisions which limited the use of the units to “single family” occupancy by allowing multiple unrelated tenants to reside in one unit, similar in nature to a rooming or boarding house.  The court stressed the unique nature of the condominium community, which they outlined as distinct from the classic freehold ownership wherein owners are at liberty to deal with their property as they choose. The declaration in question in Chan, unlike the declaration in Kilfoyl, does not contain a definition of “single family”, despite the term being present in the declaration.  The trial judge accepted the condominium corporation’s argument that the above definition present in the Nipissing declaration should be applied.  The definition was imposed on the resident Chan who was found to be in breach of the residency requirement.  The court in Chan made no mention of the fact the Kilfoyl declaration contained a very detailed and unique definition of “family”. Our concern is this: if the unique definition of “family” which is found in the Nippissing Declaration is somehow deemed to be included in every declaration that makes reference to restrictions to one or single family residential use, this could lead to the exclusion of a wide range of relationships which do not fit neatly into “a social unit consisting of parent(s) and their children, whether natural or adopted and includes other relatives if living with the family group”.  It is not likely this result was intended by the drafters of condominium declarations who restricted the use of residential units to a one family or single family occupancy. For example, unmarried couples or friends who chose to reside together for economic or convenience purposes- should they or any other person be obligated to disclose whatever unknown personal details constitute them a “family unit”? Despite the non-transient, non-student nature of these groups, they would be precluded from residing in developments which impose one family residency restrictions on their unit owners due to the simple fact they are not related. This concern is seemingly becoming a reality following Ballingall v Carleton Condominium Corporation No. 111 (“Ballingall”) in which the trial judge stated [at paragraph 2] that following the Chan and Kilfoyl decisions, the legal landscape had changed.  The judge went on to say, “Since late 2011, the law has been clear that, in the absence of a definition in the condominium’s governing documents, use as a “single family residence” does not include rentals to multiple, unrelated, tenants- even if they are living there as a family…” Consequences for Condominium Developers and Corporations This imposition of the definition places a heavy burden on condominium corporations who do not wish to conform to this restrictive definition to amend their declarations, or risk non-compliance with their own documentation. We advise developers of condominiums to make it clear in their declarations who exactly they intend to include and exclude through the imposition of residency requirements.  However, this advice does not help existing condominiums whose declarations include “boilerplate” clauses which restrict residency to one or single family use.  The existence of these clauses, in conjunction with recent case law, may result in over-zealous unit owners or directors attempting to force out occupants who are not related as parents or children of one another through court applications. We are also concerned that none of the cases subsequent to Kilfoyl have made any mention of the unique definition of a one family dwelling in the Kilfoyl declaration.  This raises the question as to whether the courts were aware in Chan and Ballingall that there is no new definition in Kilfoyl as to what makes up a family or a one family dwelling, rather the court in Kilfoyl simply supported and upheld the unique definition in the declaration of Nippissing Condominium Corporation No. 4. In our submission the Kilfoyl case has become an authority for a premise that is not supported by a careful reading of the case and the declaration that was before the courts.  We view these decisions as opening a Pandora’s Box of problems if applied to condominium declarations that restrict occupancy to one or single family use, but do not contain a similar definition of the term as present in the Kilfoyl declaration. [1] The terms used by respective condominium corporations are not consistent, both “single family residence” and “one family residence” are found in the condominium documents, though in the cases cited in this post the interpretations applied by the courts restrict the meaning to the definition in the Nipissing Condominium Corporation No. 4, cited above.