Most declarations for residential condominiums restrict the occupation and use of the units to residential use. Some go further and restrict the occupation and use of the units to “single family” or “one family” residences. The typical language used is something like:
Each unit shall be occupied and used only as a residence for a single family and for no other purpose.
These clauses have been contained within declarations since the 1970s, maybe even earlier in other jurisdictions. Most of you probably have similar clauses in your declarations, unless you are a commercial, industrial, or resort condominium, or one designed for student-housing.
I am often asked if a single family restriction is enforceable given the Human Rights Code and other legislation prohibiting discrimination in housing. Luckily, court decisions in the past five years have provided an answer.
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.” Unfortunately, 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 (see above). The decision was upheld on appeal.
In most cases a single family clause in a declaration or rule will be enforced by the courts. That said, there may be special circumstances that make a single family clause unenforceable, either throughout the condominium, or more commonly, with respect to a particular individual. A legal opinion from a condominium lawyer may be appropriate before acting on any alleged infraction.
Single family clauses are often ignored by boards until a problem arises with “overcrowding”, “too many students”, or “too many rentals”. Sometimes the clause is discovered by a diligent manager or director reviewing the documents. By the time the clause is discovered the condominium is full of units that are not in compliance with the single family restriction. Where there has not been enforcement of a single family clause for many years, the board should speak with the condominium’s lawyer to determine the proper process for enforcing it. It may require steps above the ordinary enforcement letter from the property manager or board, such as allowing an extended period of time for the current occupants to vacant the unit and/or “grandfathering” of the current occupants for the term of their lease. The appropriate process will depend on the circumstances.
Finally, I would be remiss if I did not mention that the restriction can be removed from the condominium’s documents if the condominium’s board and owners do not want such a restriction in their condominium. However, as long as the provision remains within the documents, the board has a duty to take reasonable steps to enforce it. If the provision is not enforced by the board it could cause legal problems for the directors, condominium, and owners.