Legal

March 22, 2023 Published by London and Area Chapter - By Heather Dickenson

“Single Family Only” Clause in Ontario Condo Declarations

From the CCI Review 2022/2023-3 March 2023 issue of the CCI London Chapter

The “single family” clause can be found in most condominium corporation Declarations registered in Ontario. Typically, this clause is located on the first page of the document under Section 3.1 “Occupation and Use”, the wording is typically the same: “Each unit shall be occupied and used only as a private single-family residence and for no other purpose.”

The purpose of setting it up in the Declaration for residential condominiums at the time the condo was registered, is to prevent a situation where units are being used as boarding houses, for short-term rentals (Air BnB being one example), being operated for commercial purposes – and to ensure the property is used for residential purposes, only.

With record inflation, interest rates hikes, and rents increasing dramatically across the province, more and more people may be looking to share space with a roommate or multiple individuals to reduce costs and make their housing more affordable. Unit owners may not be aware of what the “Single Family Only” provision means or why they may not be allowed to rent out the basement of their townhouse unit or their spare bedroom. This article is intended to help you understand what this restriction means, and how to communicate these concepts to unit owners and occupants in your communities.

What Do They Mean by “Single-Family”?

Where we get into complications, is the definition of what constitutes a “family unit”. The concept of a family can change over time and opinions can perspectives can differ depending on someone’s personal experiences, religious or cultural beliefs. Common industry practice has been to interpret this as any member of the same “social unit”, meaning siblings, parents and grandparents, but also same-sex partners or partners who are living together but unmarried, etc. Given the sensitivity around definitions of family unit and potential human rights implications, if it is not clear that there is a breach of this provision (for example, commercial uses or short-term rental operations), it may be a good idea to consult with a lawyer to determine the process to investigate the corporation’s concerns.

How is this Clause Enforced?

Enforcement of the clause is much easier in advance, so it is best practice to ensure new owners are aware of its existence. Never assume a new owner was informed by their lawyer or realtor, as this is often not the case. Management firms will often include an explanation of the “use of units” in their AGM and Budget Newsletters sent out to all owners. It is generally explained to potential buyers and owners interested in renting out their unit, that owners would not be able to rent out the unit to two people who were friends, but not of the same “family unit” (students, for example). However, if they were in a long-term relationship, they could be considered as part of a “unit”. When it is confirmed that multiple, un-related people are living within the unit and do not meet a definition of the same “social unit”, it is the Corporation’s statutory obligation to request that the unit owner take steps to bring the unit into compliance. This is difficult on all parties involved, so it is always best to try and prevent these issues by communicating this requirement to owners in as many places, and in as many ways, as possible.

What does Case Law Tell Us?

The courts have considered the question of “family” in several cases over the past two decades, suggesting that the interpretation is evolving. In Nipissing Condominium Corporation No.4 v. Kilfoyl, 2009, “Family” was defined 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 ruled that this definition was not discriminatory.

Similarly, in Ballingall v Carleton Condominium Corporation No. 111, 2015, the condominium corporation proposed a rule to define “family” to include:

• A social unit consisting of parent(s) and their children, whether natural or adopted, and includes other relatives if living with the primary group;
• A person living alone, whether single, divorced, a widower or a widow;
• Two or more siblings;
• A single father or mother with son(s) and/or daughter(s);
• Two persons who are married to one another or living together in a conjugal or common-law relationship.
• Two or more unrelated persons who are living together in order to pool their resources and reduce their cost of living, provided that it is clear that their collective intention is to live together permanently, OR
• Two unrelated persons who are joint owners of the unit.

While Court rulings are case-specific, it is certainly worth taking a moment to speak with your Board of Directors about how the clause is interpreted and enforced in their communities. Boards considering whether to change or clarify the wording in their Declaration may wish to speak with their lawyer about whether a change would be necessary (since we know how difficult it is to get 90% of owners to vote!) – or whether a Rule could be passed to further clarify the definition of “family” as it is understood at that condominium complex. The interpretation of the “Single Family Only” clause is a topic of interest and debate throughout the condo industry and is likely to continue to evolve as different circumstances are considered before the Courts.

Note: references in this article were taken from the Condo Authority of Ontario’s article on this topic, which can be found online at: https://www.condoauthorityontario.ca/condominium-living/declaration-by-laws-and-rules/ontarioshuman-rights-code-and-condominium-governing-documents/.

Heather Dickenson, RCM is a condominium manager at Dickenson Condo Management.

She was elected to the CCI Board at the 2021 AGM. Heather currently serves as the Education Committee Co –chair.

Heather promotes the importance and value of education in the condominium community for every corporation board and owner.