You might have heard stories about college friends or couples who are not married being denied from a condominium simply because the units were reserved for families. But this can’t be legal…can it? Surprisingly, some condominiums can legally control who can occupy units based on familial status.

In most cases, corporations/associations cannot evict an owner or tenant simply for living with a roommate. However, if there is something in the condo’s declaration, or a local bylaw, that expressly prohibits the owner of the property from using a space for any purpose other than as a single-family unit, then the corporation/association could rightfully ask the occupants to leave.

Table of contents

• Single family dwellings
• Not all limitations are the same
• What happens when the rules are ignored
• Pros
• Cons
• Why the rule has been upheld in court
• Other places where this rule may apply

Single family dwellings

A single family dwelling is a term used to define a structure that is only occupied by one household or family. The term can be used for a variety of properties, including condo units.

In Ontario, there are multiple corporations that have added the single family dwelling rules to their declarations, making this restriction very difficult to change.

Not all limitations are the same

Ontario condo corporations have the liberty to create their own rules about single family dwellings, as long as they do not go against the Human Rights Code. So, there could be limits on the number of people who are permitted to share a unit (for example, only 2 people per bedroom) or there could be a more restrictive definition in place.

It is crucial to read the community’s rules before submitting an application in order to avoid problems later on. This is especially true if you are planning to rent a unit with a friend or roommate from a condo owner.  

An example of what could happen when single family dwelling rules are ignored 

There was a condo townhouse property available for lease in 2018. The MLS Listing stated the following:

a.) “Condo bylaws allows single family occupancy only” [SIC]

b.) Credit check will be conducted

c.) Job letter required with offer

d.) All deposit cheques are to be certified

Three couples wanted to lease the property in the interest of saving some money. However, only two couples were permitted to inhabit the townhome. They hired a real estate agent who would attempt to secure the property on behalf of the couples.  

The realtor was aware of the requirements, and although she did advise her prospective tenants to add and/or disclose all six occupants via text, the trade documents that were submitted for consideration only had four occupants listed.

Only four of the occupants signed the lease. These four moved in first, and the other two moved in shortly after.

The complainant in this case came to visit the property not long after the couples were scheduled to move in. He quickly realized that three couples were inhabiting the property. The realtor, landlord and the condominium board were all contacted.

The third couple who was left off of the lease was asked to move out because they were violating the single family occupancy rule.

Furthermore, as a result of failing to comply with the Code of Ethics and acting in an unprofessional manner, the realtor was ordered by the Real Estate Council of Ontario (RECO) to pay a penalty of $12,000, and enroll in and complete an educational course.  

Benefits of having this rule in place

The single family occupancy rule may feel unfair, especially since it limits where people who are not married or in a common law relationship can live. This rule also creates additional financial strain on a population that is already struggling to find affordable housing.

But there is a valid reason why some communities add this rule to their declarations. It’s enforced to prevent owners from turning a condo unit into a boarding room for students. This problem is prevalent in buildings located near colleges and universities.

An owner may try to cram five or six young adults into a two-bedroom unit just to make some extra cash. Not only is this unfair to other owners who may end up covering costs for owners who exceed building capacity limits, but it puts students who don’t have much money in a dangerous living environment.

Drawbacks

There appears to be more cons than pros attached to this rule. The first drawback is that it creates challenges for couples who are not married or recognized as common law by legal definition.

In Ontario, you are considered common law if:

• You have lived together, in a romantic relationship for at least 3 years

or

• You are in a relationship of some permanence and have a child together        

This definition of common law is different than the one used for tax purposes (in that case, you are common law after living together for one year). 

Restrictive definitions of “family” can also create stress and anger for couples who haven’t yet lived together. For example, if one person became ill and needed to be cared for, their partner could not legally move in to help them recover.  

Narrow definitions also place unfair restrictions on extended families and groups of friends, even if they meet the income requirements.

Ontario Superior Courts have upheld the single-family rule

One may wonder if this law has been challenged in court. It has. And judges have determined that it does not go against the Human Rights Code provided the definition stated in the declaration is reasonable.

In one example, the court upheld the restriction, pointing to section 7(4)(b)(c) of the Ontario Condominium Act, which permits condo declarations to contain conditions or restrictions on the occupation and use of units. The court argued that “the peaceful use and enjoyment by each family of its own unit ought not be breached by the actions of any individual who does not conform to the contractual obligation entered into in accordance with the Declaration when the condominium was purchased.”

In another case, the condo was not enforcing the rule, but it was still upheld when the matter was taken to court.

A former condo president was one of the applicants. The current condo president (at the time) and one of the defendants, was renting out four units to students, and had been doing so for several years. The building is located very close to a university in Ottawa, and dozens of unit owners were renting their units out to students.

This condo’s declaration had stated that “each unit, except for Unit 1, Level 1, shall be occupied and used only as a private single family residence and for no other purpose…”

 Furthermore, a related rule noted that there could only be one lease per unit to encompass all tenants, and rooming/boarding homes are prohibited.

What was lacking was a firm definition of what constitutes a “single family residence.” 

In December of 2011, the condo’s counsel, after studying recent case law, proposed to clarify the meaning of “family” to help resolve the rental issue. He said that with a clear definition, the term means “a social unit consisting of parent(s) and their children, whether natural or adopted, and includes other relatives if living with the primary group.”

He suggested that the corporation pass a rule to adopt the new definition, and give notices to unit owners prior to enforcing it. He also suggested the condo include appropriate grandfathering provisions.

In 2012, the board voted to amend the rule to broaden the definition of “single family.” Part of the new language stated that two or more unrelated people could live together to pool their resources, provided it was clear that their collective intention was to live together permanently. While this is a bit of a grey area, most would agree that students do not intend to live together forever.  

The board member who was renting out rooms to students argued passionately against the changes. The dispute went on for a couple of years, but ultimately, a judge determined that the prohibition against renting to unrelated tenants had always been in the declaration. Therefore, owners could not now complain that they had not been advised of this at the time of purchase. There was no evidence that the corporation had led owners to believe that renting to unrelated tenants would be in compliance with the provision of the declaration.

The president also breached his obligations as a director. The judge said he did not act in good faith regarding the board’s obligation to enforce the restriction and was ordered to pay $15,000. The corporation was also ordered to pay $35,000.

Other places where this rule may apply

This limitation isn’t exclusive to Toronto condominiums. Some associations in the states also enforce similar rules.

Kansas

In Shawnee, Kansas, city council voted unanimously to ban “co-living” arrangements, which they defined as four or more unrelated adults. Group homes for people with disabilities are excluded from this bylaw.

South Carolina

The Supreme Court upheld a zoning ordinance that bans students from creating rooming houses in the city. The number of unrelated people who may share a home is capped at three.

Conclusion

In some instances, it is legal for a condominium to ban roommates from moving into a unit. While it’s not fair to students and others looking to save some money, the owners of these units already know the rules and must respect them.

Regardless of whether you are a prospective owner or renter, you should always read the community rules before submitting an application. It’s the best way to avoid legal issues later on.