To understand how much of an impact condominium living is having on the Saskatchewan landscape, one needs only drive through some major city centres. Townhouse and apartment style condominiums are going up in every new neighbourhood, and in older neighbourhoods apartment condominiums exist as both new developments and conversions of older buildings.
Many are drawn to the apparent “worry-free” lifestyle of condominium living. However, unit owners and a condominium’s Board of Directors still have obligations that will govern their behavior. Condominium living is not necessarily “move in and forget it”; an owner must still be conscious of his or her obligations and mindful of the rights of others.
This is clear with respect to human rights, an idea known by many but which may not be specifically contemplated in regards to condominiums. On a very basic level, discrimination may be found where there is a restriction, preference, or distinction made based on someone’s personal characteristics. Saskatchewan has a Human Rights Code which lists all the prohibited grounds of discrimination, and includes grounds such as family status, sex, age, and disability.
What role does human rights have when living in a condominium complex?
As a part of a condominium corporation, there is an obligation to be aware of human rights in a variety of situations. For example, the corporation may employ various service providers and on-site staff. When dealing with these employment situations, the corporation must be careful not to infringe on human rights when deciding who to hire, promote, terminate, etc.
Other human rights issues may stem from the bylaws or potential bylaws of a corporation. The bylaws of a corporation must take a back seat to human rights legislation in the event of a conflict. For example, can a “No Pets” rule jive with the requirement of an owner to use a seeing eye dog? Obviously not. Despite a condominium Board’s best efforts to make enforceable bylaws, the human rights legislation will always take precedent. This is a fairly obvious example of how a restriction on pets may not withstand scrutiny. There are cases in other jurisdictions where owners have attempted to challenge pet restriction bylaws by more unique means, for example on the basis that the owner requires pet companionship as a way to manage his or her mental disabilities. The results of these bylaw challenges are very fact specific and currently none have been put before Saskatchewan courts. Should you face such a challenge, contact a lawyer versed in condominium law.
Certain bylaws which attempt to prohibit the devolution of property, for example, limiting owners to a certain age group will be unenforceable. Our Saskatchewan legislation already states that bylaws which prohibit the devolution of property are unenforceable, but even without the provision such bylaws could be unenforceable due to the infringement of human rights. Certain examples include restricting ownership to 65+ in a complex or restricting a complex to “adults only”. While condominiums may continue to be advertised as such, there is no legal way to enforce it and refusal to allow young people and/or young families into such complexes could be considered discrimination.
Age restrictions may apply not only to ownership but also to use of facilities. Are there age restrictions on the use of swimming pools or tennis courts? If so, there may be an argument that these restrictions are discriminatory and unenforceable.
A proactive and rights-conscious condominium Board will consider whether physical barriers currently exist in the complex and if there are any ways to remove and prevent barriers that may infringe on current and potential owner rights. An obvious example is entrances. Is the building wheel-chair accessible?
There may be a duty to accommodate various physical and mental disabilities, up to the point of undue hardship, so if you are on the Board of Directors of a corporation and receive a request for accommodation, seek legal advice as to your obligations. Certain requests for accommodation which have made their way to the Court system have included:
- Requests for wheelchair ramps;
- Railings at stairwells; and
- Level door handles in the place of door knobs.
Keep in mind that when a request for accommodation is made, it may not be as simple as saying “yes” or “no” to the request. The obligation may require creativity and a good-faith effort to ensure the request can be met in some form or another.
Some unusual requests may also be made as a way to circumvent bylaws. For example, can a “No Smoking” bylaw be enforced if a unit owner claims to have an addiction to smoking? What if a unit owner requires the use of medical marijuana? These issues are currently untested by Saskatchewan Courts but it may not be long before our Courts are forced to consider these issues.
Condominium living has clearly been growing in popularity. Therefore both condominium developers and condominium Boards would do well to turn their minds to the potential impact that human rights legislation will have on the creation and operation of a condominium.