Occupancy Bylaw: Feedback Follow-Up for Bedrooms vs. Dens
During our Town Hall Meeting on May 29th, 2018, The Board of Directors had a Resident who asked why dens were not considered as bedrooms, and, as such, did not count as part of the Occupancy Standard.
The Occupancy Standard By-Law was registered on November 18, 2015, and stated that extra Residents would be charged their fair share of maintenance fees if Residents exceeded the suite's maximum occupancy number (for 1 bedroom = max of 2; for 2 bedrooms = max of 4; for 3 bedrooms = max of 6).
It was discussed as part (h) of the Town Hall Meeting, and the dialogue was minuted as follows:
(h) Occupancy Fee, By-Law 13 - [Resident] requested clarifications with regard to the occupancy fee and the stipulations noted in By-Law No. 13. [The Resident] noted that By-Law 13 indicates that the occupancy standard is two persons per sleeping area, and that a sleeping area is defined as a bedroom or den; however, owners have been told that a den is not accepted as a sleeping area.
(h...) Response: B. Alexe explained that if a "den" is considered a bedroom, the developer would have paid more at the time of construction, therefore rather than a 3 bedroom a suite may be classified as a 2 bedroom plus den. Further, according to Building Codes, a bedroom must have a window. In addition, City by-laws do not consider a "den" to be a proper sleeping area. It was noted that By-Law 13 also states that the Board of Directors has the authority to designate or exclude a room as a sleeping area. The Board cannot contravene the building code, and if a den is not considered a sleeping area the Board/Corporation cannot accept a den as such.
The Resident requested further information on the matter, and asked whether other Residents agree or disagree with the Board's decision. As such, the Board volunteered to post more information as to why dens cannot qualify as bedrooms through an in-depth blog post titled "Occupancy Standards: Bedroom vs. Dens - What's the Difference? (+ SURVEY)", which was published on June 7th, 2018... a mere 7 business days after the Town Hall Meeting. As you can see, we take Resident education and feedback to heart, and as such, wanted to follow-up as soon as possible by delivering what was promised during our meeting.
This blog post discussed several important matters which impede our ability to designate dens as bedrooms, including: The Ontario Building Code, The Ontario Fire Code, and Building Design and Capability. Furthermore, we also featured a survey to ask for Residents' feedback as to the matter, and we thank the 82 Residents (over 17% of all Suite Owners) who participated. Your collective feedback revealed the following results:
The surveying website used to collect feedback provides convenient independently-created reports for download, which we have included for your convenience. Please click here to download it.
Thanks to the suggestion made by the Resident at the Town Hall Meeting, and to the many responses (90.2%) stating that Residents are in agreement with this decision, the Board of Directors is happy to be assured that we have made the right decision for our Condo and our homes.
We'd also like to take this opportunity to discuss to some of the questions/feedback that Residents provided when taking the survey.
FAQ & FEEDBACK
Firstly, we'd like to thank those who took time to write a short message of support in their surveys.
Kind Words and General Agreement from Respondents:
K.S. - "Thank you for your research, reasonable position, and for taking action on this matter".
N.W. - "Thank you for clarifying this issue and providing all relevant information to the residents. I agree with the board's decision".
Z.A. - "I agree that those units where the den is used as a sleeping area for a third person, those unit owners should be charged more".
P.A. - "I strongly agree that den should not be used as a secondary bedroom. Because not all dens can be used as a bedroom".
Secondly, this is a good chance to reply to the questions/comments that owners brought to our attention (please note that suite-specific questions will not be answered here; instead, we kindly asked that you forward these via email to the Property Management Office).
Comments/Concerns regarding Building Design and Capability:
E.S. - "I am strongly opposed to any use of den areas as sleeping quarters. The additional occupancy would put undo strain on the facility resulting in further crowding, busier elevators, and amenities. The facility was not designed for these higher levels of occupancy".
Thank you, E.S., for your rationale as to why dens should not qualify as sleeping quarters. As you can see in our prior blog post on the matter and our Survey, the Board of Directors agrees that it is unfair to other owners if the building gets busier because dens would dens be considered proper sleeping quarters.
Infants as Exceptions
J.K. - "While I'm in full agreement with the by-law, my problem is with regards to who counts as an extra person. I think a 1 year-old doesn't justify a charge as they only come and go in their parents arms".
O.M. - "Many owner's concerns is that their infant child will still incur extra occupancy fees. Maybe set an age limit for the fees".
A.M. - "Families with children under the age of 2 should not be included in this".
We fully agree that infants should be exceptions, and they were proposed as such when the By-Law was first circulated to owners, where a "'Person' or 'Persons' means all individuals but does not include new-born children less than twelve (12) months old", which is the standard that Condominiums use for infants as exceptions. Families who have infants younger than twelve (12) months old can express this to Property Management, who will help them with the exemption process.
Wear & Tear on the Building
C.C. - "If dens are not considered a sleeping area for this building, I suggest our declaration be changed so this matter does not keep coming up at meetings. I do not want dens to be considered as sleeping areas because the extra rental space and income this provides to owner will definitely increase as well as the number of people living here including wear and tear and all other maintenance. At least with an occupancy fee, we can get some funds to help with costs".
The subject of occupancy is dealt with in By-Law 13, which was only passed following an affirmative ("yes") vote from more than the majority of all owners (50% + 1). Changing a Declaration is much more difficult, as it is expensive and time-consuming. However, all of the relevant information as to this is in the By-Law, though it seems that a handful of Residents did not understand the provision clearly and have disagreed with its implementation.
The Board wanted to clarify this subject (once and for all!) and is happy that the great majority of Owners who participated in our poll agreed with you and our Board, and do not want dens to be considered as sleeping areas. It is our hope that with this extensive research and response that we've conducted, this matter can finally be put to rest and not persist at future meetings.
The Occupancy Fee's goal is to do exactly what you mention- help with wear and tear and prevent people from over-using a smaller suite rather than one that is more appropriate for the size of their family.
Safety for All
W.W. - "Trying to recoup costs on the wear and tear of the building due to increased residents is fine, however, if having these additional occupants contravenes the fire code and the act, should the fee even be entertained as an option? Should the answer only be that you are allowed to have 2 people per sleeping area in your unit and that's it?"
B.L. - "I would rather adopt the principle that 'all units must NOT have people living in the unit that violates the standards. And forget about the surcharges".
H.L. - "Is there hard limits or checks in place that we don't go over the designed occupancy for safety reasons?"
N.S. - "What kind of safety measures have you taken with the extra fee? The only way is to restrict the number of occupants in each unit if that is really a safety issue".
The answer to safety for all is a bit more complicated, so we asked our Corporation Solicitor, Deborah Howden, to express it better than we could have.
"The issue can be one of safety, but where the additional occupants can be accommodated without any substantial safety risk, the Board would generally allow such additional occupants. In these circumstances, the issue becomes the additional wear and tear on the common elements, including an increased burden on amenities and unit consumption. The Corporation will then simply charge for the additional occupants, which is generally based on their proportionate use of the common elements and corporation resources. In circumstances where the number of additional occupants creates an unreasonable safety risk, then the Board would seek to prevent such situation entirely” (D. Howden, 2018).
As for keeping hard limits and checks in place, that is an item that we are currently working closely with our legal team to figure out as it is quite challenging, to say the least!
W.L. - "It should be strictly enforced. It a unit has residents residing over the allowed limit they should be charged accordingly".
We fully agree! This by-law is very strictly enforced, as are all the stipulations of our other governing documents and regulations. We are proud that our Management team is very good at making sure that they keep on top of this matter and regularly keep an eye out on suites to make sure that the by-law that the majority of all owner voted in favour of is rigorously respected.
A.S. - Would like some clarifications on short term guests in the den area... what are the rules and procedures for such situation?
Short-term guests are always welcome, and the provisions for such situations are a part of the By-Law, which states that: "'Reside' or 'Residing' means persons living in a unit for more than 90 days in any given twelve-month period. The counting of days shall be on a cumulative basis and need not be consecutive". As such, as long as guests don't stay for over three months in a twelve-month period (whether or not consecutively), then the suite owner wouldn't be affected by the By-Law or charged any additional Occupancy Fees.
The intent of this By-Law and its Occupancy Fees is not to be annoying for those who use their unit within what is reasonable for its capacity, rather, it is to ensure that those who have extra people on a regular basis pay their fair share of maintenance fees. Guests aren't Residents, so they aren't affected at all!
Den vs. Bedroom
Y.M. - "Den is not bedroom. If den is bedroom then what is difference between one bedroom apartment instead of two bedroom apartment. I STRONGLY DO NOT AGREE THAT DENS SHOULD BE USED AS SLEEPING AREAS".
S.R. - "By not designating a den as a sleeping area, you are putting 1 bedroom and 1 bedroom + den units in the same bracket".
It is interesting that the idea of comparing units can lead to such different opinions. While one owner believes that a 1 bedroom + den suite should not be in the same bracket as a 1 bedroom suite, another believes that a 1 bedroom + den suite should not be in the same bracket as a 2 bedroom suite.
As B. Alexe stated during the Town Hall Meeting, "if a "den" is considered a bedroom, the developer would have paid more at the time of construction". Ultimately, a 1 bedroom unit is still only designated as ONE bedroom (regardless if "+ den" follows or not), and a 2 bedroom (or 3 bedroom) unit is stated as TWO (or THREE) bedroom.
However, in the end, it is not just a matter of designation by the City, but one of whether the Board is allowed to classify a den as a sleeping space. As the Board cannot qualify a den as a "sleeping space" or "sleeping area", then we must remain with only "bedrooms" as rooms that qualify due to the Ontario Building Code, the Ontario Fire Code, as well as the Building Design and Capabilities
Finalize this Matter
C.S. - "I think we should direct everyone who asks to the blog post and not entertain them further in this line of questioning".
As stated above, the Board wanted to clarify this subject so that it may be finally concluded. We believe that we have thoroughly examined the issue far beyond what was expected and necessary on our part, and done all that was possible to be transparent and ensure that Owners understand our position and the factors we've had to weight. Our goal is that with this extensive research and response that we've conducted, this matter can finally be better understood and we can move forward from it.
S.G. - "Once a person pays for a unit whether they own it or it's a rental, it's their residency and I am a strong believer [of] world of freedom".
The reasons for not designating dens as bedrooms is not to infringe on an Owners' freedoms should they choose to have extra persons reside in the unit, it is in fact to prevent one suite's extra residents from costing other residents more in maintenance fees than is justified.
In a condo, the maintenance fees go towards the common expenses- items such as maintenance for the mechanical, electrical, and common areas, and even each unit's water consumption (as water consumption is not sub-metered in each unit). By having Occupancy fees, it ensures that people pay for their fair usage - those who are within their suite's limit for number of residents do so via standard maintenance fees, and those who choose to have additional residents beyond their suite's capacity will be charged a nominal fee for their additional share beyond the limits of the suite.
The same procedure is used regardless if it is for residents who are live-in owners or live-out owners who choose to rent out their suite.
We hope our reasons for as to why one owner cannot cost other owners extra fees is understandable.
But the By-Law Said...
N.S. - "In November 2017 occupancy policy code was presented to us in which safety issues and the fire code didn't recognize 'den' as sleeping area. And as the developer has mentioned none of the units has a den which conforms with the regulation for the 'den'. But the owners who have voted in favour of the bylaw were not aware of the change of the meaning of den. Therefore the voting cannot be valid and there should be another voting".
S.R. "It is clear that we are not asking to amend the already approved by-law. However, all we are asking is to implement this by-law in its corrected form by upholding what the residents have approved and asked".
S.S. "As far as the declaration is concerned that was created by the builder and adopted by the Board, that can easily change if their is a will and motivation amongst the Board Members".
This is the point that the Resident at the Town Hall Meeting made, and we again would like to stress that the by-law was never changed, altered, or corrected in any way. The By-Law explicitly states that...
"'Sleeping room' or 'sleeping area' means any bedroom, study, den or other room designated as a sleeping room or sleeping area by the board of directors of the Corporation from time to time in a dwelling unit in accordance with the architectural plans forming part of the Corporation’s registered description, but shall exclude a kitchen, dining room, living room, family room, solarium, bathroom, foyer, lobby, closet, laundry room, utility room, pantry and balcony, unless any such excluded room is designated as a sleeping room or sleeping area by the board of directors from time to time".
The By-Law provision never, at any time - even when first presented, expressed that dens automatically qualify as a sleeping room, rather, that the Board of Directors has the authority to designate it as such IF it is in accordance with the appropriate regulations. As dens in this building do not meet the Ontario Building Code nor the Ontario Fire Code regulations to qualify as a den, as as the building's architectural plans do not accommodate for the extra burden on its capacity if dens were to be used as sleeping areas, the Board of Directors DOES NOT HAVE THE PERMISSION OR AUTHORITY to qualify they as such.
We have also delegated answering this question to Deborah Howden, the Corporation's Solicitor, who furthered the meaning of the provision as such:
"On a pure reading of the wording of the By-Law, the “sleeping room” or “sleeping area” means any room designated as a sleeping room or sleeping area by the board of directors of the Corporation from time to time, including any bedroom, study, or den. This is what the section means – the board has not given up its discretion. So dens do not automatically qualify. Just as studies do not automatically qualify. And from a practical perspective, this makes sense. The room has to be designated as a sleeping room or sleeping area by the board of directors of the Corporation from time to time, having regard to local laws and the architectural plans.
The clause 'or other room designated as a sleeping room or sleeping area by the board of directors of the Corporation from time to time' modifies the first four nouns of the sentence, those being 'bedroom, study, den or other room'. If the intention were to simply modify 'other room' as opposed to the other sleeping areas, then the sentence would read: 'Sleeping room' or 'sleeping area' means any bedroom, study, or den. In addition, any other room designated as a sleeping room or sleeping area by the board of directors of the Corporation from time to time in a dwelling unit in accordance with the architectural plans forming part of the Corporation’s registered description shall qualify.' The use of the word 'or' in the clause language indicates that either the bedroom can be designated as a sleeping room, or the study can be designated as a sleeping room, or the den can be designated as a sleeping room, or any other room can be designated as a sleeping room.
Furthermore, the Board of Directors does not have the authority simply based on will to change governing documents such as the Declaration or the By-Laws (By-Laws, for example, requires at least 50% + 1 of all owners to vote "yes" to what is proposed). Should we want the Declaration or the By-Laws changed, we must go through the proper legal and Owner voting procedures to do so.
S.R. - "The amount of $75 per month per person itself is beyond any rational justification".
S.S. - "That can easily be changed... unless if the Board is all out to make an extra buck by the $75 charge".
We respectfully disagree that the amount of $75 "is beyond any rational justification", as it is based on the cost of an average person's water consumption and gas consumption (we had our accounting department help us out with this) with a little extra for the additional wear and tear on the building that extra residents account for. If you'd like the exact break-down, you are welcome to contact Property Management via email for more information.
Furthermore, our Board is build of volunteers- and we are all live-in Owners. That means that not only do we not get paid a single cent for any of the time we spend with these matters (and therefore definitely don't "make an extra buck by the $75 charge), but we are also subject to the same rules. If any one of us had extra people living in our unit, we would be paying the same Occupancy Fee that any other resident would pay. As such, when we examine matters such as these, we do it with the utmost faith that it be the best option for the Corporation as a whole- all while fully knowing it may not be the easy option for some residents or even ourselves.
We hope that this (lengthy!) blog post has shed much light and provided important information to all Owners as to our final thoughts and answers on the "Bedrooms vs. Dens" issue. It is our priority to make the calls that are best for the Corporation, and it is refreshing to see that the feedback from our survey has shown overwhelming support for the Boards decision that dens cannot qualify as sleeping areas (with 90.2% agreeing).
All the best,
Andreea Birloncea, President
On behalf of the Board of Directors of TSCC 2368.