Enforcing Age Restriction Bylaws – What does “reside” mean?
The Importance of Reflecting the Vote Results in Meeting Minute Taking
Many strata corporations have an age restriction bylaw that provides that “persons under the age 55 are not permitted to reside in a strata lot“. The intended effect of this bylaw is to ensure that no one living in a strata lot is under the age of 55 years. Where a strata corporation adopts an age restriction bylaw, section 123(2) of the Strata Property Act, (the “Act”) provides that:
A bylaw that restricts the age of person who may reside in a strata lot does not apply to a person who resides in the strata lot at the time the bylaw is passed and who continues to reside there after the bylaw is passed.
Accordingly, when a strata corporation is trying to enforce an age restriction bylaw, it is important to know who resided in the strata lots at the time the bylaw is passed.
This was the primary issue raised in The Owners, Strata Plan NW 499 v. Louis, a 2009 decision of the BC Court of Appeal. In this case, the relevant age restriction bylaw was passed shortly after Mrs. Louis had passed away. At that time, her estate had been probated, with title to a one-half interest in her strata lot registered to the brother of the respondent in the legal proceedings, Roderick Louis. Mr. Louis himself had an executed land transfer form which transferred a one-half interest in the strata lot from the estate to him, but he had not registered it when the bylaw was passed. After Mrs. Louis passed away, Mr. Louis stayed in the strata lot from time to time. The Strata Corporation initiated court proceedings, seeking a declaration that Mr. Louis was not entitled to live in the strata lot because of the Strata Corporation’s age restriction bylaw. It was the Strata Corporation’s position that Mr. Louis did not reside in the strata lot at the time the age restriction bylaw had passed. The Judge who initially heard the case agreed and ordered Mr. Louis to vacate the strata lot within 60 days. Mr. Louis appealed the decision to the BC Court of Appeal on the basis that he was residing in the strata lot when the bylaw was passed and he was therefore protected by the section 123(2) exemption.
The Strata Corporation’s age restriction bylaw provided as follows:
N. W. 499 is an age dedicated building. All residents must be the age of 55+ over, except as a casual visitor
Mr. Louis was less than 50 years of age when the bylaw was passed. He claimed, however, that he had been residing in the strata lot when the bylaw was passed. The issue for the Court to decide was “what does “reside” mean?”
At the trial level, the Judge relied on the 2007 Shorter Oxford Dictionary of English for the definition of “resides” to find that Mr. Louis would have had to have make the strata lot his “permanent home”. The Trial Judge held that the strata lot was, at best, occupied by Mr. Louis on an occasional basis. On appeal, the Court of Appeal relied on two legal dictionaries, Stroud’s Judicial Dictionary of Words and Phrases, 5th ed., Vol. 4 and Words and Phrases Legally Defined, 3rd Ed., Vol. 4, which contained more extensive discussions about the interpretation of the word “reside”. A review of the commentary in these dictionaries revealed that the interpretation of “resides” very much depends on the context in which it is used.
Ultimately, the Court of Appeal held that, in modern times, persons may have more than one residence, such as a primary home, plus a summer place or a condo in a warmer climate. While there must be an element of permanency to the meaning of “reside”, a person can have multiple residences.
In looking at Mr. Louis’ situation, the evidence was that his mother died in 1999, and, after that event, he had two residences: the strata lot and Riverview Hospital. After his mother died, Mr. Louis began paying the strata fees and other expenses for the strata lot and assumed responsibility for her strata unit. While he initially treated it as a secondary abode, the evidence was that, more recently, it had become his primary residence. It was apparent from all the evidence that, during the critical period, Mr. Louis was not just a casual visitor or a sojourner. Rather, he resided there on a regular and not infrequent basis up to January 2002. As a result, the Court found that the suite was a permanent secondary residence and he therefore had to be considered a “resident” when the bylaw was passed. Accordingly, the Court of Appeal held that Mr. Louis was entitled to the benefit of the exemption to the bylaw granted by section 123(2) of the Act.
This case demonstrates the difficulty for strata corporations and property managers in enforcing age restriction bylaws. Before taking steps to enforce an age restriction bylaw, a strata corporation must determine whether the person living in the strata lot is exempt. To do so, the strata council must find out if the person was “residing” in the strata lot at the time the age restriction bylaw is passed. That determination will require a strata council must look at all factors, including who is responsible for the strata lot expenses, how frequently the strata lot is used by the person, whether the person has other residences, and whether the occupation of the strata lot has some degree of permanency. Only after looking at all the relevant factors can the council decide whether the person is exempt from the operation of an age restriction bylaw or whether enforcement of the bylaw should proceed.
Another interesting issue raised by the Court of Appeal was the validity of the bylaw package. The age restriction bylaw was presented as part of a bylaw package. The evidence was that the owners voted on a few specific bylaws, including the age restriction bylaw. However, there was no record in the minutes for the meeting of the bylaws as a whole (totalling 33 in number) being put to a formal vote. Accordingly, the Court of Appeal was reluctant to say that the owners passed the bylaw package at the meeting or otherwise.
On this point, the Court of Appeal held that:
Section 35(1)(a) of the [Act] reads (with emphasis added): “The strata corporation must prepare all of the following records: (a) minutes of annual and special general meetings and council meetings, including the results of any votes“. It seems to be clear from the whole of the evidence that this meeting was not conducted in a businesslike manner. It cannot be assumed that there was a formal vote on the bylaws that was not recorded in the minutes.
The Court of Appeal found that, because there was no record in the meeting minutes of the vote being taken on the resolution to adopt the bylaws, the bylaws were therefore not valid. The Court held that there had to be a minimum compliance with the requirements of the Act before it can be said that a bylaw of a strata corporation is valid and operates to bind those affected by it.
This decision emphasizes the importance of accurate minute-taking. The minutes of annual and special general meetings must include the results of any votes. Failure to include the results of votes could have unintended and undesirable effect of invalidating resolutions. In addition, I have noticed in reviewing council meeting minutes, that, while many of these minutes note decisions have been made by the council, they often do not indicate that the decision was actually voted upon or the results of the council’s votes (i.e. the number of votes in favour and against, as well as any abstentions). Standard Bylaw 18(1) provides that decisions at council meetings must be made “by a majority of council members present in person at the meeting“. This suggests that all council decisions made at a meeting must be voted upon by the council. Given the Court of Appeal’s findings in the Louis decision, an owner may have grounds to challenge the validity of council decisions if there is no record of the vote in the minutes.