IS A BYLAW RESTRICTING OCCUPANCY VALID?

The enforceability of an occupancy restriction often depends on the circumstances.  We have another article describing the general limit to the power of bylaws.

In the contect of an occupancy restriction, the Strata must be able to show why enforcement is reasonable in the particular circumstances.  Given the existing case law, enforcement of an occupancy restriction bylaw is likely only going to be permitted where the bylaw is reasonable and being used to take enforcement steps against a commercial, or quasi commercial form of occupancy.  When enforcing an occupancy restriction bylaw against a family unit, the Strata must also be able to show why granting an exemption (if the bylaw allows it, or a human rights based exemption is sought) would cause undue hardship.

CAN A STRATA USE GENERAL OR LOGICAL ASSUMPTIONS AS JUSTIFICATION FOR ENFORCING AN OCCUPANCY RESTRICTION BYLAW?

A Strata cannot usually justify enforcement an occupancy restriction bylaw by relying only on assumptions.

It may seem obvious that five occupants will create more wear and tear than two occupants. It may also seem logical that more residents will place more pressure on common property, parking, garbage facilities, elevators, plumbing, or other building systems. However, recent decisions from the Civil Resolution Tribunal and Human Rights Tribunal show that common sense assumptions about the number of residents in a unit do not make the occupancy restriction bylaw enforceable in all cases.

The Civil Resolution Tribunals has accepted that more occupants may logically create more use. However, it found there was no evidence showing that allowing five people to occupy the strata lot, rather than two, would create anything more than a trivial impact to other residents or the Strata as a whole.

Where the enforcement of an occupancy restriction bylaw bumps up against a family size, or family composition argument the Strata must be prepared to prove that allowing the exemption to the bylaw would cause or has caused undue hardship. The Tribunals will not accept generalized concerns about family size or composition as creating undue hardship.

We have articles addressing the duty to accommodate Owners based on the Human Rights Code.

WHAT EVIDENCE IS RELEVANT TO ENFORCE OCCUPANCY RESTRICTION BYLAWS?

Where a family status issue is raised, the Strata should obtain enough information and evidence to understand the nature of the claimed familial relationship and the impact of enforcement.

Depending on the circumstances, this may include information about:

• The number of occupants.

• The relationship between the occupants.

• Whether children are involved.

• Whether the household operates as a family or family-like unit.

• Whether the residents share meals, expenses, caregiving, companionship, or emotional support.

• Whether the arrangement is intended to be stable or temporary.

• Whether enforcement would require the household to separate or move.

• Whether the relationship is actually an economic relationship akin to boarding or rooming.

  
  

The Strata should be careful not to demand excessive or intrusive personal information when enforcing an occupancy restriction bylaw. The goal is not to pry into private family life. The goal is to obtain enough information to assess whether the Human Rights Code is engaged and whether accommodation is required.

WHEN CAN A STRATA CLAIM UNDUE HARDSHIP IN A FAMILY STATUS CASE?

If a prima facie case of discrimination on the basis of family status is established by a resident, the Strata must show that its conduct in enforcing the bylaw is justified unless it is wiling to grant an exemption. In the face of established discrimination on the basis of family status, continuing to enforce the bylaw may only be done where granting the exemption would demonstrably result in undue hardship.

Undue hardship is a high standard. It is not established merely because accommodation is inconvenient, unpopular, or somewhat costly. The relevant considerations may include financial cost, health and safety risks, impact on other owners, and the practical feasibility of the accommodation.

In the occupancy restriction context, undue hardship may require evidence that allowing the non-conforming household to remain would cause a significant and demonstrable problem, such as a safety risk, building capacity issue, serious interference with other residents, or substantial strain on common property or services.  It is not enough to say that the bylaw would be undermined if an exemption were granted.

WHAT EVIDENCE WOULD SUPPORT A CLAIM OF UNDUE HARDSHIP?

The type of evidence required to prove that a Strata would suffer undue hardship if an oversized family was allowed to remain will depend on the reason for the bylaw and the facts of the case. 

Relevant evidence may include:

• Building code or fire safety requirements (this may be key).

• Occupancy load limits.

• Expert reports from engineers, building consultants, fire safety professionals, or other specialists.

• Evidence of plumbing, electrical, elevator, ventilation, or mechanical capacity limits.

• Evidence of actual overcrowding and poor conditions within the strata lot.

• Evidence of complaints from other residents.

• Evidence of significantly increased maintenance or repair costs.

• Evidence of insurance, safety, or regulatory concerns.

• Evidence that the strata lot is being used as a boarding house, rooming house, or commercial accommodation.

• Evidence that the requested exemption would create a real and substantial burden on the strata community.

The stronger the human rights impact, the stronger the evidence will likely need to be to establish undue hardship.

WHAT ARE THE PRACTICAL CONSIDERATIONS WHEN EVALUATING A BYLAW THAT RESTRICTS OCCUPANCY OF A STRATA LOT?

Occupancy restriction bylaws may still be valid and enforceable, but enforcement now requires care, evidence, and a proper human rights analysis. 

The most important practical points are:

• Do not enforce an occupancy restriction automatically.

• Consider whether family status or another protected ground is engaged.

• Ask for relevant information, but do not overreach when doing so.

• Consider exemptions in good faith.

• Gather evidence of actual impact or risk.

• Do not rely only on generalized concerns.

• Document the decision-making process.

• Ensure the response is reasonable, proportionate, and evidence-based.

STRATAS MUST BE CAUTIOUS WHEN TRYING TO LIMIT THE NUMBER OF OCCUPANTS IN A STRATA LOT.

A Strata may have legitimate reasons for limiting occupancy, but those reasons must be supported by facts where enforcement affects family status or another protected ground. Where discrimination is established, the Strata must show not enforcing the bylaw would result in undue hardship.  Undue hardship may require evidence that allowing the household to remain would cause a real problem, such as a safety risk, building capacity issue, serious interference with other residents, or substantial strain on common property or services, general concerns about crowding, wear and tear, or fairness are insufficient.