Part 26 published on 01/05/09
Age-restriction by-law did not apply to prior resident
The strata corporation passed an age-restriction by-law in 2002. The lower Court found that the by-law prevented the Defendant from living in the unit because the Defendant was not residing in the unit at the time the by-law was passed (as required by Section 123(2) of the Strata Property Act). [See Condo Cases Across Canada, Part 23, September 2008]
On appeal, the BC Court of Appeal held that, at the time the by-law was passed, the suite was being used by the Defendant as a “permanent second residence”. Therefore, he should have been considered to have been a resident when the by-law was passed, for purposes of Section 123(2) of the Strata Property Act. Accordingly, the Defendant was entitled to the benefit of the exemption from the by-law and was entitled to live in the unit.