Most declarations for residential condominiums contain a provision that states that “Each unit shall be used and occupied as a private single family residences and for no other purpose.”
So what does “private single family residences” mean?
Recent case law has confirmed that this terminology, in a declaration, means that units only meet the definition of single family occupancy if the residents are “a social unit consisting of parent(s) and their children, whether natural or adopted and other relatives if living with the primary group.”
In the recent case of Ballingall v CCC No. 111, 2015 ONSC 2484 the court was asked to address the question again.
For many years the boards of directors of CCC 111 did not enforce the private single family residence provision in its declaration. Many owners who lived in the complex complained about the failure to enforce the provision and the impact of student residents on the property and the owner occupant residents.
The board was advised by its lawyer that it had an obligation to enforce the single family occupancy provision in its declaration. Therefore the board informed the owners that the provision would be enforced going forward.
One of the board members, who rented his unit out to students, campaigned vigorously against the board’s decision. The board was asked to define single family and it did so by enacting a rule that broadly defined “single family”. The rule defined “private family single residence” to include “two or more unrelated persons 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” and to include “two unrelated persons who are joint owners of the unit”. The board also went on to allow any current owner in the building the right to not comply with the single family provision for a period of 10 years. The rule originally proposed by the corporation’s legal counsel did not include the 10 year grandfathering.
A group of owners who were occupying their units and wanted the single family provision enforced brought an application to the court for a declaration that the corporation’s documents prohibited the use or occupancy of units by unrelated occupants not forming part of a social unit consisting of a single family and that the rule enacting the new definition of “single family” was invalid.
The court confirmed that unless the term “private single family residence” is defined otherwise in a condominium corporation’s governing documents, it has the definition set out above.
The court struck down the corporation’s rule, not on the grounds that it expanded the definition of single family occupancy, but because the grandfathering provision wiped out the effect of the single family provision in the declaration.
The trial judge concluded that the corporation had an obligation to enforce the provision of the declaration despite the fact it had not enforced it in the past. The judge explained that the prohibition against renting to unrelated tenants had always been in the declaration for everyone to see. Landlords could not now complain that they had not been advised of this by their lawyer or realtor at the time of purchase. There was no evidence that the corporation had led the landlords to believe that renting to unrelated tenants would be in compliance with the provision of the declaration.