Imagine owning a condo and being told that your child or parent may sleep on your sofa or in the empty second bedroom Friday night, but not Saturday, and not again in the same month, unless the property manager or board gives written permission.
That is the apparent effect of an “overnight visitors” rule adopted by Peel Condominium Corporation No. 485 in May 2023. The building has 341 dwelling units and is located at 135 Hillcrest Ave. in Mississauga.
The two-page rule passed three years ago defines visitors as non-residents of the building. It says visitors may stay for a maximum of one overnight visit per calendar month. A longer or second visit requires advance written permission, and consecutive overnight stays are prohibited without approval.
Permission rests in the “absolute and sole discretion” of the property manager or board. An unauthorized visitor may be treated as a trespasser, immediately removed, and the corporation’s enforcement expenses and legal fees may be charged to the owner’s unit.
The rule says the restrictions are needed to prevent “overcrowding of units and the unreasonable overuse of the common elements, including … utilities, and parking space(s).”
But can a condominium corporation legally regulate who sleeps in an owner’s privately owned home — and how often?
I phoned the property manager, Ace Condominium Management, and sent four emails, on July 16, 17, 19 and 20, to property management and a condo board member for their comments and clarifications on the rule, but I did not hear back by publication time.
Condominium ownership requires owners to surrender some of the freedom enjoyed by owners of detached houses.
Section 58 of Ontario’s Condominium Act authorizes boards to make rules governing units and common elements to promote safety, security and welfare of the owners and the property, or to prevent unreasonable interference with the use and enjoyment of the units or common elements.
But the rules must always be reasonable and consistent with the act, the declaration and the bylaws.
That requirement cannot be satisfied merely by inserting the words “security,” “overcrowding” or “welfare” into the introduction to a rule. There must be a rational connection between the problem and the restriction imposed.
There are many circumstances in which a longer visit may be necessary or desirable. Consider an owner whose adult child comes from away for a weekend. A grandparent who wants grandchildren to stay during March break. An elderly owner who needs a relative’s assistance after surgery. A separated parent whose child stays overnight on weekends. A couple who spend weekends together but otherwise live separately. A child living with a separated parent under a court order. A spouse or partner who lives elsewhere for employment reasons.
None of those situations necessarily creates overcrowding or an unreasonable burden on the common elements.
In passing rules, a board must always act in good faith and comply with the legislation. In my view, a court would want evidence explaining why one overnight stay is harmless but two are not.
The rule also creates potential problems under Ontario’s Human Rights Code, leaving open the possibility that the building’s discretion could violate protected grounds under the code.
The “absolute and sole discretion” wording in the rule leaves open the possibility of arbitrary, discriminatory or bad-faith decisions. At minimum, permission requests must be assessed reasonably, consistently and with proper attention to human-rights obligations.
The trespass provision is also troubling. I don’t know how an invited guest can simply be transformed into a trespasser because he or she sleeps in a privately owned unit for a second night.
The threatened chargeback of all enforcement expenses and legal fees is problematic. The authority must exist in the act or the condominium documents, the underlying rule and enforcement must be lawful, and the amounts must be properly recoverable.
In my opinion, the building’s overnight guest rule is intrusive, improper and vulnerable to challenge. A board concerned about overcrowding should regulate overcrowding. If parking is the problem, regulate parking. If residents are operating short-term or Airbnb rentals, enforce valid short-term rental restrictions.
The solution should address the actual harm, not regulate ordinary family and social life.
Owning a condominium means accepting reasonable community rules. It should not mean asking the property manager for permission before inviting family to spend the weekend.
