AGE RESTRICTION BYLAWS

"Age is just a number. It's totally irrelevant unless, of course, you happen to be a bottle of wine." -- Joan Collins

ARE AGE RESTRICTION BYLAWS STILL LEGAL?

Yes, but only in a limited form. Strata corporations may have age restriction bylaws but they must be consistent with the requirements of the Strata Property Act.  Under the Strata Property Act a strata corporation may adopt a bylaw requiring one or more persons residing in a strata lot to be at least 55 years old.  Age restrictions below 55, such as 19+, 25+, 35+, or 40+ bylaws, are no longer permitted or enforceable as of November 24, 2022.

Age restriction bylaws regulate residency, not ownership, so a person under 55 may still own a strata lot but may not be able to live there unless an exemption applies. Those exemptions include legacy residents who were lawfully residing in the strata lot when the bylaw was passed, certain caregivers, and some family members, including younger spouses, partners, children, and adult children in prescribed circumstances.

WHAT IS THE HISTORY OF AGE RESTRICTION BYLAWS?

Age restriction bylaws in British Columbia strata corporations have changed dramatically since November 2022.  Before those changes, strata corporations had broad statutory authority to pass bylaws restricting the age of persons who could reside in a strata lot. Former section 123 of the Strata Property Act expressly allowed a strata corporation to pass a bylaw restricting the age of residents to any age that it saw fit and which was approved by the owners.

That changed with Bill 44 in November 24, 2022, when the Province limited strata corporations’ ability to adopt age restriction bylaws to 55+ bylaws.

THE OLD LAW – BROAD AUTHORITY TO RESTRICT AGE

Historically, section 123 of the Strata Property Act permitted strata corporations to adopt age restriction bylaws setting the age restriction at any age whatsoever.

That meant a strata corporation could adopt bylaws restricting occupancy to persons over 19, 25, 40, or another specified age, subject to the statutory protection for residents who were already living in the strata lot when the bylaw was passed.  Strata corporations could even adopt an age restriction bylaw setting a maximum age, though it is unknown whether any strata corporations had ever done so.

This produced a wide range of age-restricted strata communities. Some were 19+. Some were 40+. Some were 55+. Others used different thresholds.

The key point is that, before November 2022, the statute expressly allowed age restriction bylaws generally.

BILL 44 – THE FIRST ATTEMPT TO SHIFT TO 55+ ONLY

Bill 44, the Building and Strata Statutes Amendment Act, 2022, changed the law. It amended section 123.1 of the Strata Property Act, to provide that a strata corporation could only pass an age restriction bylaw if the bylaw required one or more persons residing in a strata lot to have reached an age that was not less than 55 years.

The policy shift was significant.

Age restriction bylaws were no longer treated as a general governance tool available to strata corporations. Instead, the Legislature preserved only one category of age restriction: 55+ housing.

The practical effect was that 19+, 25+, 40+, 45+, and similar age restriction bylaws were no longer permissible.

THE INITIAL UNCERTAINTY

The Provinces first attempt to amend section 123.1 created significant legal uncertainty.

The wording introduced by Bill 44 stated that a strata corporation “must not pass” an age restriction bylaw except a 55+ bylaw. That wording clearly prohibited the adoption of new age restriction bylaws below 55. However, it was less clear whether the amendment automatically invalidated age restriction bylaws below 55 that had already been passed and filed in the land titles office before November 2022.

For several months it was unclear whether Bill 44 had retroactive effect and had eliminated all existing age restriction bylaws below 55, or only prohibited the adoption of new non-55+ bylaws.

This was not a small technical issue. Many strata corporations had pre-existing 19+, 25+ 45+, or similar bylaws. If the statute only prevented strata corporations from passing new bylaws, then existing bylaws might arguably have survived. If the statute made all non-55+ age restriction bylaws unenforceable, then those bylaws ceased to have practical effect.

BILL 24 – THE CLARIFICATION

The Legislature quietly clarified the issue at a later date in the spring of 2023.  Bill 24 further amended section 123.1(1) so that it now provides:

“Except as permitted by subsection (2), a bylaw must not restrict the age of persons who may reside in a strata lot.”

The current wording is materially different. It does not merely say that a strata corporation must not pass a non-compliant age restriction bylaw. It says that a bylaw must not restrict age except as permitted. The current version of section 123.1 confirms that the only permitted age restriction bylaw is one requiring one or more residents to have reached an age that is not less than 55 years.

The point-in-time legislative history also shows that the original Bill 44 wording was amended by Bill 24, with the change effective retroactively to November 24, 2022.

WHAT CAN A STRATA CURRENTLY HAVE FOR AN AGE RESTRICTION BYLAW?

The current law is now much clearer.  A strata corporation may have a 55+ age restriction bylaw. It may not have an enforceable bylaw restricting residency to an age below 55.

Section 123.1(1) provides that, except as permitted by subsection (2), a bylaw must not restrict the age of persons who may reside in a strata lot. Section 123.1(2) then permits a bylaw requiring one or more persons residing in a strata lot to have reached a specified age that is not less than 55 years.

This means that an age restriction bylaw requiring residents to be 19+, 25+, or 45+ is not enforceable.

It also means that strata corporations should not attempt to “revive” or rely on old non-conforming age restriction bylaws simply because they remain registered in the bylaws. The legislation changed the legal effect of those bylaws.

A strata corporation may therefore still have or adopt a bylaw requiring one or more persons residing in a strata lot to be 55 years of age or older. However, the existence of a valid 55+ bylaw does not mean every underage person is prohibited from residing in the strata lot. The statute and regulations create several important exemptions.

WHAT ARE THE PRACTICAL IMPLICATIONS OF THE AMENDMENTS TO S. 123.1 FOR STRATA CORPORATIONS?

The practical implications of the amendments to section 123.1 are significant.

Strata corporations should review their bylaws to determine whether they contain outdated age restrictions. If the bylaws contain a 19+, 25+, 45+, or other under-55 age restriction, the strata corporation should not assume any such bylaw is enforceable.

Councils should also be careful when communicating with owners, tenants, purchasers, and realtors. A Form B or bylaw package may still show an old age restriction bylaw, but that does not mean the bylaw remains enforceable.

For 55+ strata corporations, councils must also understand the statutory exemptions. The proper question is not simply whether a resident is under 55. The proper question is whether the person falls within one of the statutory or regulatory exemptions.

CONCLUSION ON AGE RESTRICTION BYLAWS

The law of age restriction bylaws has changed substantially since November 2022.

Before Bill 44, strata corporations could generally pass any age restriction bylaws they saw fit. After Bill 44, age restriction bylaws were limited to 55+ bylaws. After Bill 24, the legislation was clarified so that non-55+ age restriction bylaws are not enforceable, whether they were newly passed or already existed.

The practical lesson is straightforward: 55+ bylaws remain available, but all other age restriction bylaws should be treated with extreme caution and, in most cases, as unenforceable.

Strata corporations with age restriction bylaws should review their bylaws, update outdated language, and ensure that councils understand both the current 55+ rule and the exemptions that apply to residents who do not meet the age threshold.