Occupancy issues are coming up more often in condominiums. Boards are dealing with concerns around overcrowding, short‑term rentals, rooming‑house style arrangements, and the resulting impact on noise, security, garbage, and general wear and tear on the building.
One issue we are seeing with increasing frequency is condominium corporations trying to limit the number of occupants through rules, rather than passing an occupancy standards by‑law. While the intention is often understandable, this approach can create serious enforceability issues if the wrong governance mechanism is used.
Occupancy Standards By‑laws
As we discussed in an earlier blog post, Occupancy Standards in Condos: How Many Is Too Many?, the Condominium Act treats occupancy limits differently from most other restrictions. That post explains when an occupancy standards by‑law is required, how it must be approved, and why owner approval matters. You can read it here:
https://www.lashcondolaw.com/occupancy-standards-in-condos-how-many-is-too-many/
If a condominium corporation wants to impose a limit on how many people may live in a unit, an occupancy standards by‑law is generally the appropriate legal mechanism. Because this type of restriction goes directly to how an owner uses their unit, it must be approved by the owners and is registered on title. This provides clarity and makes the restriction far more defensible if it is ever challenged.
Where Rules Can Still Play a Role
Rules are not irrelevant to occupancy concerns. Under the Act, rules are intended to promote safety, security, and the welfare of owners and property, or to prevent unreasonable interference with the use and enjoyment of the units and common elements.
In many cases, enforcing existing rules can address the real issues without setting a specific occupancy limit. Rules dealing with fire safety, excessive noise, garbage management, misuse of building systems, or damage to common elements may all be enforceable, even if they indirectly affect how many people are living in a unit.
This is also true where a unit is being used in a way that resembles a boarding or lodging house. If there is constant traffic, increased security risks, or abnormal strain on the building, enforcement can often focus on conduct and impact rather than the number of occupants itself.
When Rules Go Too Far
Problems arise when a rule simply states that only a certain number of occupants may live in a unit. Even if the limit seems reasonable, this type of restriction may effectively operate as an occupancy standard.
Courts and tribunals tend to look at substance rather than labels. Calling something a rule does not necessarily make it enforceable. If the restriction is really about how many people may occupy a unit, it may be found unenforceable if it should have been passed as an occupancy standards by‑law.
Reviewing the Declaration
Before creating new rules or by‑laws, boards should always review the declaration. Many declarations already contain use restrictions that are directly relevant to occupancy concerns.
Some declarations include single family use provisions or prohibit rooming houses, boarding houses, or leasing by the room. Where these restrictions exist, the corporation may already have authority to take enforcement action.
That said, single family use restrictions are not the same as occupancy limits. These clauses require careful interpretation and must be applied reasonably and consistently. They do not automatically authorize a board to impose or enforce a specific numerical cap on occupancy.
The Takeaway
Occupancy concerns are real and often complex. Rules can be effective where the issue involves safety, security, damage, or nuisance-related conduct. However, hard limits on the number of occupants generally require an occupancy standards by‑law. Reviewing the declaration and obtaining legal advice early can help boards choose the right approach and avoid enforcement difficulties later on.
