Occupancy Standards By-laws
Short Answer
A condominium by-law that sets out standards, levels or procedures for the performance of maintenance obligations of the corporation and/or unit owners.
Definition
Section 57 of the Condominium Act, 1998, (the "Act") provides that a condominium corporation may by by-law establish standards for the occupancy of those units of the corporation that are intended for residential uses.
For the purposes of this type of by-law, the term "standards" is to be understood in a restricted sense as defined in section 57 of the Act only, which appears to deal solely, or at least primarily, with maximum numerical occupancy standards. This form of by-law, therefore, should not be used to impose general conditions or restrictions relating to occupancy or use of the units. In fact, pursuant to subsection 7(4)(b) of the Act, those types of provisions are to be set out in the declaration of the corporation and should be considered outside of the range of appropriate subject matter for condominium by-laws.
The Standards
Subsection 57(2) of the Act states, the standards "shall be" (i.e., cannot be anything other than):
The Benefits
Establishment of an Occupancy Standards By-law has the following benefits:
1. Enforcement
It permits the condominium corporation to enforce occupancy standards directly without relying on intermediary authorities, such as the municipality. Subsection 57(3) of the act confirms that the by-law grants the corporation authority to prohibit persons from occupying units that do not comply with its standards.
2. Cost Recovery
It also permits the corporation, where the established standard has been contravened by a person, to levy an assessment against the unit in question for amounts that (a) reasonably reflect the increase in common element maintenance and repair costs caused by the contravention and (b) reasonably reflect the increase in common utility charges incurred because of the contravention. Such additional costs form part of the common expenses attributed to the unit, and therefore payment can be enforced by condominium lien. See subsections 57(4) and (5) of the Act.
For the purposes of this type of by-law, the term "standards" is to be understood in a restricted sense as defined in section 57 of the Act only, which appears to deal solely, or at least primarily, with maximum numerical occupancy standards. This form of by-law, therefore, should not be used to impose general conditions or restrictions relating to occupancy or use of the units. In fact, pursuant to subsection 7(4)(b) of the Act, those types of provisions are to be set out in the declaration of the corporation and should be considered outside of the range of appropriate subject matter for condominium by-laws.
The Standards
Subsection 57(2) of the Act states, the standards "shall be" (i.e., cannot be anything other than):
- the occupancy standards contained in a by-law passed by the council of a municipality in which the land of the corporation is situated; or
- standards that are not more restrictive than standards that are in accordance with the maximum occupancy for each unit based on the maximum occupancy for which the building in which the units are located is designed.
The Benefits
Establishment of an Occupancy Standards By-law has the following benefits:
1. Enforcement
It permits the condominium corporation to enforce occupancy standards directly without relying on intermediary authorities, such as the municipality. Subsection 57(3) of the act confirms that the by-law grants the corporation authority to prohibit persons from occupying units that do not comply with its standards.
2. Cost Recovery
It also permits the corporation, where the established standard has been contravened by a person, to levy an assessment against the unit in question for amounts that (a) reasonably reflect the increase in common element maintenance and repair costs caused by the contravention and (b) reasonably reflect the increase in common utility charges incurred because of the contravention. Such additional costs form part of the common expenses attributed to the unit, and therefore payment can be enforced by condominium lien. See subsections 57(4) and (5) of the Act.
See the Condopædia article, By-laws, for general information on the procedure for enacting a condominium by-law.
What you need to know…
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…as a Unit Owner
Unit owners are obligated to comply with the condominium's by-laws. They also should seek to comply with all applicable property standards, whether or not legally established. To a certain extent, this involves merely common sense and common decency. Occupancy situations that would exceed the limits set by an Occupancy Standards By-law do not merely cause the condominium corporation to incur costs (that can be charged against the unit as indicated above) but may cause unsafe conditions for both the occupants of the unit in question and their neighbours. |
…as a Board Member or Manager
As noted above, if the board intends to establish conditions or restrictions on the occupancy or use of a unit that do not relate solely to the maximum numerical occupancy of the unit, these should be enacted as provisions of the condominium's declaration pursuant to subsection 7(4)(b) of the Act. |
…as a Declarant
Declarants may wish to enact Occupancy Standards By-laws when creating a condominium, particularly if there is risk due to the design or location of the units that they might be misused. For example, a condominium plan located near a university or college may be attractive to persons who plan to rent out the units in the manner of a lodging or boarding house for students. In our experience, such uses can detract from the future marketability of the units or enjoyment by other owners of the property. Such uses can also give rise to costs (such as increased condominium insurance premiums) and other inconveniences that other purchasers of the units might not anticipate. If such costs arise within the first year of operation of the condominium following registration, they could create a shortfall for which the declarant might be held liable pursuant to section 75 of the Act. Declarants should seek the advice of the project engineers, architects and designers as well as legal counsel when seeking to establish this type of by-law. |