As strata owners, realtors, lawyers and homeowners battle the effects of escalating housing costs in British Columbia’s hyper-competitive market, one solution has come to the forefront: implementing age restriction bylaws.
These types of restrictions can be used by both strata corporations and local governments as a tool for creating more accessible housing. However, with great power comes great responsibility – before making any decisions involving age restriction bylaws, it is important that stakeholders familiarize themselves with relevant legislation in order to ensure compliance.
When a strata council is deciding whether to put age restriction bylaws to a ¾ vote of the owners, the strata council must consider and weigh the needs of both current and potential future residents when deciding whether to introduce age restriction bylaws. there are practical and legal considerations to take into account as well. One practical consideration is that an age restriction bylaws may impact the number of owners willing to serve as strata council members. This is because some retirement complexes have many owners who are away for the winter months. Another practical consideration is whether age restriction bylaws will increase or decrease the purchase price of the suites in the building. Conversely, in complexes with recreational facilities close by as well as access to shopping or public transport but without schools or playgrounds nearby, introducing such restrictions could prove beneficial – helping attract like-minded individuals likely seeking similar amenities from their homes.
In assessing the impact an age restriction bylaw will have on the value of the suites, the strata council may wish to consult a realtor.
There are legal considerations to take into account when deciding whether to put an age restriction bylaw to a ¾ vote of the owners. One legal consideration is whether an age restriction bylaw is constitutional. The Supreme Court of Canada has held that age discrimination is a reasonable and justifiable limitation on the right to freedom of association under section 2(d) of the Charter of Rights and Freedoms. This means that an age restriction bylaw is likely to be constitutional if it is reasonable and justifiable. A strata council should carefully consider whether an age restriction bylaw is reasonable and justifiable before putting it to a vote of the owners.
Age restrictions are a common way for strata councils to manage the demographics of their buildings, but they are not without controversy. The Strata Property Act sets out a number of requirements that must be met for an age restriction bylaw to be valid. The bylaw must be reasonable and necessary to protect the legitimate interests of the strata corporation, and it must not discriminate against any person on the basis of age or any other ground prohibited by the Human Rights Code.
Another legal consideration is whether an age restriction bylaw will contravene any provincial or federal anti-discrimination laws. For example, British Columbia’s Human Rights Code prohibits discrimination on the basis of age. This means that a strata corporation that restricts ownership or occupancy to persons over a certain age could be found to have contravened this law. Before putting an age restriction bylaw to a vote of the owners, a strata council should ensure that it does not contravene any provincial or federal anti-discrimination laws.
If an owner challenges an age restriction bylaw in court, the judge will consider whether it meets these requirements. If the bylaw is found to be discriminatory or unreasonable, the judge may find it to be unenforceable.
If the strata council decides that an age restriction bylaw would benefit the strata corporation, they should consult their condominium lawyer. If an owner challenges the bylaw in court, the judge will take into account whether it meets the requirements of the Strata Property Act (“Act”), the Human Rights Code and other federal and provincial legislation. If the age restriction bylaw does not meet these requirements, the judge may find the bylaw to be unenforceable.
The Human Rights Code prohibits discrimination against persons purchasing property on the basis of marital status but not on the basis of age. This means that a person cannot be discriminated against when purchasing property based on whether they are married, single, divorced, or widowed. However, a person can be discriminated against when purchasing property based on their age. Age is defined in the Human Rights Code as an age of nineteen (19) years or more and less than sixty-five (65) years. This means that a person who is under the age of 19 years or over the age of 65 years can be discriminated against when purchasing property.
Section 10 of the Human Rights Code lists grounds of discrimination that are prohibited when a landlord is choosing a tenant. Included in the list of prohibited grounds of discrimination is age. Therefore, a landlord cannot discriminate against tenants on the basis of age. At first glance it appears that a strata corporation could enact an age restriction bylaw that prohibits those under the age of 19 years from residing there. However, discriminating against tenants on the basis of family status is also prohibited by section 10 of the Human Rights Code. There is no definition given in the Human Rights Code for “family status”. However, refusing to rent to parents with young children would likely be found by a judge to be discrimination on the basis of family status.
Therefore, strata corporations who wish to enact age restriction bylaws now should consider setting the age limit at fifty-five years of age and older. Exceptions should be made for spouses and visitors. Strata corporations should not only have their age restriction bylaws drafted by a lawyer but the bylaw should be reviewed by a lawyer from time to time as judges will give more direction in the coming years about what age restrictions can be legally enforced by strata corporations.
Even if a strata corporation has a bylaw that prohibits rentals, tenants are always a possibility because an owner must be allowed to rent his or her suite if he or she is under hardship. It may not make sense to apply an age restriction to owners that reside in the building that does not apply to tenants.
Changes to the Strata Property Act are now in efffect. More information via the Vancouver Island Home Owner’s Association
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