November 17, 2015 By: and
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Many condominium declarations state that dwelling units can be used only as single-family residences (or words to that effect). Even if there is no such provision in the declaration, there may be such a provision in the condominium's rules.

But this begs the question: what is a family? In other words, who is permitted to reside in a unit that can be used only as a single-family residence?

Early assumptions

Until 2009, it was thought that these sorts of provisions could only regulate how a unit could be used – not who could use the unit. So, it followed, anyone could reside in the unit (subject to occupancy standards), as long as those people used the unit as a single-family residence. This essentially meant that there could be only one kitchen, and also that all of the residents could equally share the living areas of the home. Put differently, there could be only one "living quarters", and there could be no roomers or boarders.

It was further assumed that any other restriction – i.e. any restriction on who could reside in a unit – would contradict human rights legislation. In particular, it was thought that such a restriction would constitute discrimination on the basis of family status (which of course is not permitted in a condominium).

These assumptions were based on court decisions about zoning, most notably the 1979 case of Bell v. The Queen. In that case, a municipal zoning bylaw purported to define the term "family" for the purpose of regulating the users of dwelling units. Ultimately, the Supreme Court of Canada found that zoning by reference to the relationship among the users of a dwelling, rather than to actual use of the dwelling, is beyond the authority of a municipality. As a result, the court found that it was unreasonable (and oppressive) for the municipality to define family for the purposes of regulating the users of a dwelling. The court also found that what is important (in the municipal zoning context) is how the dwelling is being used and not who is using it.

Game-changers

All of this changed in 2009 with the court decision in Nipissing Condominium Corporation No. 4 v. Kilfoyl. In the Kilfoyl case, the declaration said that the units could be used only as "one family residences" and also included the following definition of family: "A social unit consisting of parent(s) and their children, whether natural or adopted and includes other relatives if living with the primary group."

Based on this definition, the condominium corporation asserted that groups of unrelated students were not permitted to reside in the units. The court agreed, saying that "multiple unrelated tenants" constituted a breach of declaration.

And in the Kilfoyl case, the court found that this did not contravene Ontario's Human Rights Code, namely the requirement to avoid discrimination on the basis of family status:

"The peaceful use and enjoyment by each family of its own unit ought not 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.

NCC No. 4's declaration with respect to the restriction placed on the use of units is designed to promote the renting of units to families and has been interpreted by the corporation to include in that definition a more expansive definition of family in order to comply with the requirements of the Human Rights Code."

In 2010, the Ontario Court of Appeal upheld the Kilfoyl decision. In doing so, the court of appeal also found that there was no violation of the Human Rights Code, stating that different principles apply to land use planning versus the validity of a condominium's declaration and bylaws.

So, the Kilfoyl decision established that condominium communities are unique. In condominiums, families can be defined to exclude unrelated persons.

The law advances

Then, in 2011, the decision in Chan v. Toronto Standard Condominium Corporation No. 1834 advanced this case law. In the Chan case, the condominium's governing documents said that the units could only be used as single family residences – but contained no definition of family. In those circumstances the court said that the definition of family contained in the declaration of Nipissing Condominium Corporation No. 4 applied!

The Ontario Court of Appeal also upheld the Chan decision. So, taken together, the Kilfoyl and Chan cases indicate that, in a condominium, the use of the dwelling units can be restricted to "families", and if there is no definition of family in the condominium's governing documents, it appears that the following definition may well apply:

"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 problem with this definition is that it is extremely narrow. What about a couple with no children? What about someone living alone? What about siblings living together? What about two persons (not in a conjugal relationship) who intend to live together permanently? It appears that these persons are also excluded from the definition of family noted above.

Unique definitions

Condominiums with a "single family" restriction should consider creating their own definition of family – either by amending the declaration or by passing a rule. This idea has recently been confirmed in a further court decision in the case of Ballingall v. Carleton Condominium Corporation No. 111.

In the Ballingall case, the court confirmed that it is proper for a condominium corporation to pass a rule to create an alternative definition of family, different from the definition endorsed in the Kilfoyl and Chan cases. The rule must simply be reasonable and consistent with the basic principles behind the "families only" provision in the declaration.

This is great news for condominium corporations and their owners, because it means that they have some flexibility in establishing a definition of family for their condominium community. The definition can also vary somewhat from condominium to condominium, depending on the nature and history of the occupancies in the particular community.

In the Ballingall case, the court also considered the potential for different types of grandfathering provisions (grandfathering or exempting of existing rights) to be included in any such rule. Again, this will depend upon the nature and history of occupancies in the condominium.

Creating and enforcing the rule

Experience indicates that rules to establish a definition of family can sometimes be contentious and divisive. The Ballingall case is one such example. In each case, take care to introduce the rule with full explanation of the court decisions and the legal principles at play, and with openness to feedback and suggested revisions from owners. In most cases, owners will ultimately see the wisdom behind passing such a rule, tailored to suit the particular condominium community.

Enforcement can be a challenge with many rules. Of course, if a violation is identified, the normal processes are:

  • One or more cease and desist letters from the board of management; followed by
  • One or more cease and desist letters from legal counsel (perhaps with legal costs claimed against the violator);
  • Mediation and arbitration, or court process, depending on all of the circumstances.

Proving a violation of a single-family provision can pose its own unique challenges – because it may be necessary to gather evidence of the relationship between the occupants. Depending on the circumstances, evidence may be available from witnesses, from materials received (respecting tenancies) pursuant to section 83 of the Condominium Act, by inspecting the unit, by direct questioning of the occupants, or by other means. Also consider including a provision in the rule requiring the occupants to disclose (to the condominium corporation) the nature of their relationship, only for purposes of confirming compliance with the single-family provision.

Without a proper definition of family, it may be difficult to interpret and enforce a single-family provision contained in a condominium declaration. In that case, a corporation could be left with the restrictive definition that has been established by the case law. By passing a rule (as case law permits), a condominium can create a common understanding among its owners of what "family" is and who can reside in dwelling units restricted to single-family use.

James Davidson is a partner at Nelligan O'Brien Payne LLP, and has been a member of the firm's Condominium Law Practice Group for more than 30 years. Christy Allen is an associate lawyer at Nelligan O'Brien Payne LLP, and a member of the Condominium Law Practice Group.

[This article was originally published in the October 2015 edition of CondoBusiness magazine.]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Family Law