Full House? Landlords Misread Occupancy Limits

by Chris on January 2, 2018

A landlord in Victoria is facing a Human Rights dispute after turning away a family for having too many children. The case brings to light the fuzzy line between occupancy limits and discrimination.

The landlord rejected the family of six, with four children under the age of eight, specifically because he felt the family was too large for the three-bedroom, two-bath property. The landlord had just remodeled, and he was concerned that four children would cause excessive wear and tear.

After being rejected, the family struggled to find an alternative, and was rejected by six more landlords before finding a suitable rental at $500 more per month than the first landlord was asking.

The tenants filed a complaint with the Human Rights Tribunal. The landlord responded, arguing that he relied on the Residential Tenancy Branch’s written guidance regarding occupancy limits which states, “a landlord usually cannot refuse to rent to people because they have children, but can limit the number of people living in a rental unit.” He asserts that he did not discriminate because the family has children, but rather because they have too many children for the property. He would rent to a family with, say, two children.

However, the judge evaluating the case made an initial determination that suggests the guidance may be conflating two different rules — that landlords cannot discriminate against families with children and that landlords generally have the right to limit occupancy — and that landlords do not have the right to assert arbitrary occupancy limits.

In a written decision allowing the case to move forward, the judge says it is clear that the Human Rights Code protects family status, and that status includes the size and composition of a family. Citing a previous decision from 1987, the judge writes that the purpose of protecting families is the difficulty they suffer, particularly in urban areas, in finding rental accommodations. The judge indicates that this provision is even more relevant in today’s rental market.

The judge criticizes the RTB guidance for setting out a “blanket rule” that does not adequately address the issue of occupancy limits for families with children. This broad mandate, he says, does not convey to landlords that they will have to show some sort of justification for rejecting a family on occupancy limits. At a minimum, a landlord must act in good faith and for reasons related to the maintenance of the unit. Additionally, the landlord has to establish that the restriction is reasonably necessary and cannot be modified without causing undue hardship.

In previous cases, factors such as inadequate hot and cold water supply or insufficient parking spaces justified restrictions. Other considerations include municipal bylaws with minimum space requirements, and legitimate health and safety concerns.¬†However, the judge flatly rejected the landlord’s argument that concern over extra “wear and tear” is a reasonable justification.

In another recent example, a Vancouver family claims they were turned away from a co-op housing complex because they didn’t know the sex of their unborn child. The couple, who already has a son, allegedly was informed that they could not remain at the top of the list for a two-bedroom unit unless their unborn child also is a boy. The board explained that it adopted a CMHC guideline suggesting that only same-sex children could share a bedroom after the age of five.

While the merits of this case have yet to be evaluated, policies like this could prove a costly mistake. A Human Rights Tribunal may find that the Human Rights Code prevails over less formal guidance issued by other agencies or tribunals, or policies adopted by private landlords. That could result in significant income loss. It is not necessary to show that a landlord intended to discriminate, or that an occupancy policy is illegal on its face. It is enough to demonstrate that a policy has an adverse impact on families with children.

Given the extraordinarily tight rental market in most cities across the country, it is likely the decision of what constitutes discrimination will be based on a public policy that protects families, including those who can’t afford one bedroom per child.

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Disclaimer: The information provided in this post is not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.

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