Age Restriction Bylaws: Additional Exemptions Created and Legislative Update

Articles

By Veronica Franco, Lucya Kowalewski, Kezia Messakh and Jaicee Payette

In our article, Building and Strata Statutes Amendment Act, we explained the amendments made to the Strata Property Act, SBC 1998, c. 43 (the “SPA”) that significantly restricted a strata corporation’s power to create age restriction. Before November 24, 2022, a strata corporation could set any minimum age. Some strata corporations set age restrictions that banned all children or adults less than 45, or any other age. The amendments adopted in Bill 44: Building and Strata Statutes Amendment Act, SBC 2022, c.41 (“Bill 44”) prohibit a strata corporation from creating a bylaw that sets anything less than age 55 as the minimum age that a person must be to live in a strata lot. As a result of Bill 44, this limitation on age restriction bylaws is now set out in section 123.1 of the SPA.

When the BC Government announced the changes in Bill 44, it suggested that it rendered all pre-existing age restriction bylaws that set a minimum age at less than 55 unenforceable. In other words, a bylaw that provided that all persons residing in a strata lot must be at least 19 years old or 50 years old was unenforceable. However, despite the BC Government’s stated intent, the language in Bill 44 was not so clear. Unlike the ban on rental restrictions, there was nothing that expressly stated that a strata corporation could not enforce a pre-existing age restriction bylaw that set the minimum age at less than 55. Further, given that there were no transitional provisions in Bill 44, it was unclear whether the pre-existing age restriction bylaws that set a minimum age at less than 55 were rendered immediately invalid or not.

In response to that concern, the BC Government introduced Bill 24: Miscellaneous Statutes Amendment Act (No. 2), 2023 (“Bill 24”) on April 6, 2023 for its first reading in the legislature.  Bill 24 includes an amendment to s.123.1 of the SPA that mimics the language that bans all rental restriction bylaws. In other words, not only can the strata corporation not pass an age restriction bylaw that sets a minimum age at less than 55, the strata corporation is unable to enforce a pre-existing one either.  Bill 24 recently passed its third reading on April 25, 2023, and will become effective retroactively to November 24, 2022, if (and when) it receives royal assent.

Following the coming into force of Bill 44, many strata corporations, concerned that their age restriction bylaw might no longer be enforceable, have since adopted age restriction bylaws that set the minimum age of 55 for persons permitted to reside in the strata lot. For those that closely follow the news, a couple, who had just bought a strata lot in a strata corporation that had a 35+ age restriction bylaw that was likely rendered unenforceable by Bill 44, became pregnant. While pregnant, the strata corporation passed a 55+ age restriction bylaw, which meant that while she would be exempt from the bylaw under s.123.2, her unborn child would not (and neither would her future children). To address situations such as these, the classes of people that are exempt from any age restriction bylaw have been expanded by Order in Council No. 276 dated May 1, 2023. The Order in Council amends the Strata Property Regulation, B.C. Reg. 43/2000 (the “Regulation”) by adding s.7.01.

Specifically, for the purpose of section 123.2(c) of the SPA, the child (adult or minor) and the spouse of a person, as defined in s.7.01 of the Regulation, are also exempt from a valid age restriction bylaw if they are the child or spouse of the person living in the strata lot who either meets the minimum age set out in the age restriction bylaw or is exempt from the age restriction bylaw on a different ground. Examples of how this applies are set out below:

  • “Child” exemptions: A child is defined as a person under the age of 19. A child is exempt if at least one of their caregivers (i.e. parent) meets the minimum age set out in the age restriction bylaw or was exempt from the age restriction bylaw because they were living in the strata lot at the time the bylaw was passed (and was not contravening any age restriction bylaw that was valid and in force up until the date the new age restriction bylaw was passed).

For the purposes of the examples below, let’s assume the strata corporation passed an age restriction bylaw on February 1, 2023, that requires all persons who live in the strata lot to be at least 55 years of age.

Example: A resident of a strata lot was 56 years old when the 55+ age restriction bylaw was passed. The 56 year old has decided to adopt a 12 year old child and will be living in the strata lot together with the 56 year old. The 12 year old child will be exempt from the age restriction bylaw even though that child moved in after the age restriction bylaw came into force.

Example B: The two residents of a strata lot were 41 years old at the time the 55+ age restriction bylaw was passed. One of the 41-year old residents is now expecting triplets in November. The Strata Corporation had a 35+ age restriction bylaw until the 55+ age restriction was passed on February 1, 2023.  The triplets and any further siblings born to their 41 year old mother will be exempt from the 55+ age restriction bylaw.

Example C: The 35 year old resident of a strata lot is the father of two active toddlers aged 2 and 4 years.  They were living in the strata lot at the time the 55+ age restriction bylaw was passed. The 35 year old resident and toddlers are exempt from the age restriction bylaw.

  • “Adult child” exemptions: An adult child is exempt if one of their caregivers (i.e. parented them when they were a child) lives in the strata lot and meets the minimum age set out in the age restriction bylaw or was exempt from the age restriction bylaw because they were living in the strata lot at the time the bylaw was passed (and was not contravening any age restriction bylaw that was valid and in force up until the date the new age restriction bylaw was passed).

Example: John grew up in Burnaby and has completed his PhD at McGill. He has returned to BC but is having trouble finding employment.  His parents live in a strata corporation that recently adopted a 60+ age restriction bylaw on March 1, 2023. Both his parents are in their 70’s. They want to help John out and offered to let him stay with them until he finds a job.  John is exempt from the age restriction bylaw.

Example: A strata corporation passed a 55+ age restriction bylaw on April 15, 2023. A 55 year old couple moved into a strata lot on May 1, 2023, with their 21 year old daughter and 26 year old son. The son and daughter are exempt from the age restriction bylaw.

  • “Spouse” exemption: A spouse is defined as someone who is either married to or living in a marriage-like relationship with a resident of a strata lot. The spouse is exempt if their spouse meets the minimum age set out in the age restriction bylaw or was exempt from the age restriction bylaw because they were living in the strata lot at the time the bylaw was passed (and was not contravening any age restriction bylaw that was valid and in force up until the date the new age restriction bylaw was passed).

For the purposes of the example below, the strata corporation adopted a 55+ age restriction bylaw on March 15, 2023.

Example A: One spouse is 60 years old and the other is 50 years old. The 50 year old spouse is exempt from the age restriction bylaw. If the 50 year old spouse was living in the strata lot at the time the age restriction bylaw was passed (March 15, 2023), that spouse benefits from both the spouse exemption and the living in the strata lot at the time the bylaw was passed exemption.

Example B: Sarah and Jane have been living together for 10 years. Jane is 60 years old and Sarah has just turned 45 years old. Sarah is exempt from the age restriction bylaw as she was a resident of the strata lot before the bylaw was adopted and also because she is Jane’s spouse.

Example C: Edward has just celebrated his 60th birthday on March 16, 2023. On a recent work trip, Edward met Isabel, who is 42 years old. Their love has blossomed and they married May 2, 2023. Edward wants Isabel to move in with him. Isabel would be exempt from the age restriction bylaw. If Edward and Isabel have children, their children would be exempt. If Edward has any adult children, they would be exempt. Once Isabel moves in and benefits from the spouse exemption, none of her children from a previous marriage, adult or minor, would be exempt.

The creation of exemptions for spouses and children means that it is virtually impossible to ensure a strata corporation that has a 55+ (or older) age restriction bylaw can prevent underage persons from residing in the strata lots. There are many possible family situations that can result in exemptions. To the extent that such an age restriction was a means to compensate for Bill 44 rendering age restrictions with a minimum age of less than 55 years old unenforceable, that strategy might need re-thinking.