November 3rd - 2011

LEGAL BEAT: Students in townhouse complex violate family provisions

A North Bay condominium corporation brought an application against the owners of townhouse units to enforce the terms of the declaration and bylaw registered many years ago.

A North Bay condominium corporation brought an application against the owners of townhouse units to enforce the terms of the declaration and bylaw registered many years ago. Those terms stipulated that the units were to be occupied as “one-family residences.” This particular corporation’s declaration defined family 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 owners were aware of the terms from the status certificate obtained when they bought the units. Nevertheless, they rented the units to multiple unrelated tenants.
The owners argued that it was unreasonable to restrict occupancy in this day and age on the basis of whether the occupants were related to one another or not.

The court noted that Section 7(4)(b) of the province’s Condominium Act permits declarations to contain conditions or restrictions on the occupation and use of units. Owners of units, among others, must comply with the act, declaration and bylaws.

The judge and court of appeal also decided that these occupancy provisions do not violate Ontario's Human Rights Code. According to the decision, the complex is “a condominium project geared toward families living in their individual units in the project and sharing communal responsibility for the common areas. The peaceful use and enjoyment of each family of its own unit ought not to be breached by the actions of any individual who does not conform to the contractual obligation entered into in accordance with the declaration when the condominium was purchased. The condominium project is unique in that individual families have their privacy protected within their own units but at the same time are required to live by rules of the community as they pertain to the common areas used by all members of the individual condominium project."

NCC No 4 v Kilfoyl 2010 ONCA 217

MERV'S COMMENTS
Not all condominium declarations have these same restrictions. North Bay has a tight rental market and many people may be vying for the few units available, including students. REALTORS® should be aware of specific details of local zoning bylaws as well as the declarations of condominium corporations which they are marketing.

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