The Validity of Occupancy Restrictions

ARE OCCUPANCY RESTRICTIONS IN STRATA CORPORATIONS LEGAL?

Occupancy restrictions in Stratas can be legal in British Columbia, provided they are properly adopted as bylaws.  A Strata may generally regulate how strata lots are occupied, including adopting limits aimed at preventing overcrowding, protecting safety, preserving building systems, or managing the use of common property, but those restrictions must not be arbitrary, discriminatory, or inconsistent with provincial legislation, and they are subject to the Human Rights Code.

As mentioned above, even where an occupancy restriction is valid on its face, it may still be unenforceable in a particular situation if enforcing it would contravene the Human Rights Code. This is particularly important where the bylaw affects families, larger households, children, or non-traditional family arrangements.

HAVE THE COURTS AND TRIBUNAL UPHELD OCCUPANCY RESTRICTIONS?

Occupancy restrictions have been upheld by the Courts and the Civil Resolution Tribunal.  Their decisions have largely confirmed that Stratas may, in appropriate circumstances, adopt bylaws limiting the number of occupants in a strata lot. These bylaws are not prohibited simply because they regulate how owners, tenants, occupants, or visitors may use a strata lot.

Occupancy restriction bylaws may serve legitimate purposes, including:

• Preventing overcrowding.

• Reducing excessive wear and tear.

• Managing pressure on common property and common assets.

• Addressing noise and nuisance concerns.

• Preserving residential use.

• Preventing boarding-house, rooming-house, or commercial-style occupancy arrangements.

Accordingly, occupancy restrictions are not necessarily unenforceable under the Strata Property Act.

IS AN OCCUPANCY RESTRICTION ALWAYS ENFORCEABLE?

A validly adopted occupancy bylaw may be generally enforceable, but still be unenforceable in particular circumstances. Section 121(1)(a) of the Strata Property Act provides that a bylaw is not enforceable to the extent that it contravenes the Human Rights Code. The Human Rights Code also prevails where there is a conflict between the Code and other legislation.

This means that a Strata cannot simply say: “The bylaw applies to everyone equally, so it can be enforced.”

Equal enforcement may still be discriminatory if the bylaw has an adverse impact on a person or family because of a protected ground, including family status.

We have another article addressing the duty to accommodate, whether family size is protected under the Human Rights Code and the general limits to the scope of bylaws.

DOES THE HUMAN RIGHTS CODE APPLY TO OCCUPANCY RESTRICTIONS?

The Code applies to Stratas. When Stratas enforce bylaws, rules, and policies, they provide services connected to the management, use, and enjoyment of strata lots, common property, and common assets. As a result, a Strata’s enforcement decisions must comply with the Code.

This does not mean occupancy restrictions are prohibited. It means they must be enforced carefully and in a manner that does not discriminate on protected grounds.

Where a resident claims that an occupancy restriction adversely affects them because of family status, disability, or another protected ground, the Strata must consider whether enforcement would be discriminatory. If a prima facie case of discrimination is established, the Strata must justify its conduct and show that it accommodated the resident to the point of undue hardship.

WHAT ARE THE PRACTICAL IMPLICATIONS OF THE CODE ON THE ENFORCEMENT OF OCCUPANCY RESTRICTIONS?

Occupancy restrictions are not inherently unlawful. They may still be useful and enforceable, particularly where they are aimed at genuine overcrowding, unsafe occupancy, rooming-house arrangements, or uses that are inconsistent with residential strata living.

However, councils should avoid rigid or automatic enforcement, particularly where the enforcement of an occupancy restriction impacts a family.

Before enforcing an occupancy limit, a Strata should consider:

• Who is occupying the strata lot.

• Whether the occupants are part of a family or family-like unit.

• Whether children are involved.

• Whether the residents have raised a protected ground (like family status).

• Whether the bylaw has an adverse impact connected to that protected ground.

• Whether an exemption or accommodation should be considered.

A properly drafted occupancy restriction may still be valid. The legal risk usually arises from how the Strata enforces it.

OCCUPANCY LIMITS MUST BE BASED ON LEGITIMATE CONCERNS.

Occupancy restriction bylaws are not automatically invalid. Stratas may adopt bylaws that regulate the number of occupants in a strata lot, particularly where the purpose is to address legitimate concerns such as overcrowding, safety, excessive use of common property, nuisance, unreasonable noise, or boarding-house-style occupancy.

However, validity and enforceability are different concepts. A bylaw that is valid on its face may still be unenforceable in a specific case if enforcing it would contravene the Human Rights Code.

The practical lesson is that occupancy restrictions must be approached cautiously. They remain available as a governance tool, but they cannot be enforced mechanically. Stratas must consider human rights impacts, assess requests for exemptions in good faith, and ensure that enforcement is supported by evidence and reasonableness.

In light of the above councils should also consider whether adopting an occupancy restriction bylaw that may have limited enforceability, is better than simply dealing with the potential issues caused by high occupancy and over crowding through the Strata’s other bylaws, like the nuisance, unreasonable noise bylaw, illegal use bylaw, or use contrary to the express or implied use of the strata lots as set out on the strata plan.