WHO IS EXEMPT FROM A 55+ AGE RESTRICTION BYLAW?

"There is no exception to the rule that every rule has an exception." -- James Thurber

DO ALL RESIDENTS HAVE TO BE 55 OR OLDER TO COMPLY WITH AN AGE RESTRICTION BYLAW?

A 55+ age restriction bylaw does not mean that every resident of the strata lot must be 55 or older.  The Strata Property Act only permits a strata corporation to pass 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.

However, section 123.2 of the Act and section 7.01 of the Strata Property Regulation create important exemptions.   These exemptions matter.

WHAT ARE THE EXEMPTIONS TO AN AGE RESTRICTION BYLAW?

The starting point is section 123.1 of the Strata Property Act.  Section 123.2 and Regulation section 7.01 exempt certain underage residents: such as:

• ·       Preexisting underaged lawful residents.

• ·       Underaged care givers of a resident who is 55 or older.

• ·       Children of a resident who is 55 or older.

• ·       Underaged adult children of a resident who is 55 or older.

• ·       The underaged spouse of a resident who is 55 or older.

EXEMPTION 1 – EXISTING LAWFUL RESIDENTS

The first exemption protects certain existing residents.

A 55+ age bylaw does not apply to a person who:

• resided in the strata lot immediately before the bylaw was passed;

• was not contravening an age restriction bylaw by residing there at that time; and

• continues to reside in the strata lot after the bylaw is passed.

  
  

This is the basic “grandfathering” protection. It prevents a newly passed 55+ bylaw from forcing existing lawful residents out of their homes merely because they do not meet the new age threshold.

However, the protection depends on continued residence. If the person ceases to reside in the strata lot, the exemption may no longer assist them.

EXEMPTION 2 – CAREGIVERS

The second exemption applies to caregivers.

Section 123.2 provides that the age requirement does not apply to a caregiver who resides in the strata lot for the purpose of providing care to another person who resides in the strata lot and is dependent on caregivers for continuing assistance or direction because of disability, illness, or frailty.

The exemption recognizes that a person living in a 55+ strata lot may need a live-in caregiver and that caregiver may be under 55.

The caregiver exemption is not a general permission for any underage person to reside in the strata lot. The person must be residing there for the purpose of providing care to someone who is dependent on caregivers for continuing assistance or direction because of disability, illness, or frailty.

EXEMPTION 3 – CHILDREN

The regulations created an additional exemption for children.

Section 7.01 of the Strata Property Regulation defines a “child” as a person under 19 years of age. It then provides that a child is exempt if one of the child’s caregivers is a “specified resident.”

A “specified resident” means a resident of the strata lot who has reached the age specified in the bylaw, or a resident who is grandfathered under section 123.2(a) of the Act.

The practical effect is that a child may reside in a 55+ strata lot if one of the child’s caregivers is a specified resident.

This exemption is not limited to biological or adopted children of the specified resident. The regulation focuses on whether one of the child’s caregivers is a specified resident.

EXEMPTION 4 – ADULT CHILDREN

The regulations also create an exemption for adult children.

Section 7.01 provides that a person who is 19 years of age or older is exempt if the person resides in a strata lot with a specified resident who was one of that person’s caregivers before the person reached the age of 19 years.

This exemption is broader than many councils may expect. It may protect an adult child who resides with a parent or other former caregiver who is a specified resident. The regulation does not say that the adult child must have continuously lived in the strata lot since childhood. Nor does it say that the specified resident must still be providing care to the adult child.

That wording may allow an adult child to reside with a parent or former caregiver in a 55+ strata lot, even if the adult child is under 55.

EXEMPTION 5 – SPOUSES

The regulations also exempt spouses.

Section 7.01 defines “spouse” to include a person who is married to another person or who is living with another person in a marriage-like relationship. It then provides that the spouse of a specified resident is exempt.

This means that an underage spouse may reside with a specified resident in a 55+ strata lot.

The regulation does not require the spouse to have reached any particular age. It also does not require the marriage or marriage-like relationship to have existed for any minimum period of time.

However, the exemption depends on the person being the spouse of a specified resident. It does not appear to apply to former spouses.  If the specified resident dies or ceases to reside in the strata lot, the underage spouse may no longer fall within this exemption.

WHO IS A “SPECIFIED RESIDENT”?

The concept of a “specified resident” is central to the child, adult child, and spouse exemptions.  A specified resident is a resident of the strata lot who either:

• has reached the age specified in the bylaw; or

• is grandfathered because they were lawfully residing in the strata lot immediately before the bylaw was passed and continue to reside there.

  
  

This definition matters because the regulatory exemptions are built around the specified resident.

HOW DOES A STRATA CORPORATION ENFORCE ITS AGE RESTRICTION BYLAW?

A strata corporation should not enforce a 55+ bylaw blindly.  Before issuing a complaint, fine, or demand that a person cease residing in a strata lot, council should consider whether the person may fall within one of the exemptions.

The council should ask:

• Was the person already lawfully residing in the strata lot when the bylaw was passed?

• Is the person a live-in caregiver?

• Is the person a child whose caregiver is a specified resident?

• Is the person an adult child residing with a specified resident who was previously one of their caregivers?

• Is the person the spouse of a specified resident?

  
  

The strata corporation may request reasonable information to assess whether an exemption applies. However, it should avoid intrusive or unnecessary demands. The goal is to determine whether the person is exempt, not to pry into private family life.

Strata councils should avoid rigid enforcement, consider the actual legal status of the resident, and make evidence-based decisions rather than relying on assumptions.

CONCLUSION ON AGE RESTRICTIONS

A 55+ age restriction bylaw remains lawful in British Columbia, but it is subject to important exemptions.  The age requirement does not apply to certain existing lawful residents, qualifying live-in caregivers, children, adult children, and spouses of specified residents.

The practical lesson is that 55+ bylaws must be enforced carefully. A strata corporation should not assume that an underage resident is in breach merely because the bylaw says 55+. The council must first determine whether the person falls within a statutory or regulatory exemption.

Where an exemption applies, the person is not contravening the age restriction bylaw. Where the facts are unclear, the strata corporation should obtain reasonable information, assess the exemption in good faith, and document its decision-making process.