In Canada's housing crisis, distribution of living space a growing issue

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Houses belonging to the Mole Hill Community Housing Society in Vancouver, B.C. Photo: Joe Mabel/Wikimedia Commons

At the law firm where I work, we hear from housing providers all the time about the issue of overhousing and underhousing -- that is, situations where people are renting units that are bigger than they need (overhousing) and people whose space needs are not met (underhousing). 

Underhousing is not surprising -- we are experiencing a housing crisis in Canada so having people living in cramped quarters seems an obvious outcome.

Perhaps less obvious is the reverse. Case by case, though, we understand how overhousing happens: in many cases, people moved into their now-too-large units years ago when they were living with spouses and children. They've celebrated family milestones within the walls; they've welcomed newborns into their lives there; they've marked their children's heights on the kitchen wall; they've lost loved ones there; they've buried pets in the backyard; they've invested their sweat and sometimes their money into improving their homes -- in short, they are connected to the living space. Their need for space may be diminished but their need for this particular space has not. 

Housing co-ops and other forms of non-profit housing are more affordable options in many places but especially so in big cities like Vancouver and Toronto where rents have skyrocketed in recent years. So what constraints are there on the use of space in non-profit and co-operative housing? 

In Ontario, housing providers providing rent-geared-to-income (RGI) subsidized units generally have to follow occupancy standards to try to keep unit size matched to household size. For example, Toronto non-profits and co-ops covered by the Housing Service Act have occupancy standards defined by the City of Toronto. Those standards require adult household members who are defined as spouses to share a bedroom. For adults who are not spouses there must be a minimum of one and a maximum of two people in a bedroom. Then there are standards for children, single parents, and so on. In short, the occupancy rules for RGI recipients are pretty clear.  

Housing providers without any oversight relationship with a municipality or a Canada Mortgage and Housing Corporation operating agreement do not have these restraints. Tenants and co-op members paying "market rents" are free to occupy as much space as they wish. (Limits for the maximum number of people living in a room or in a unit are set out in municipal property standards but allow for far more people than the RGI standards. For example, the City of Toronto municipal code occupancy standards are found here.)

B.C. case highlights housing tensions

The tension between the overhoused and the underhoused was at the core of a recent decision of the B.C. Supreme Court, Anna Potter and Paul Buckley vs Vancouver East Co-operative Housing Association. Members of a Vancouver housing co-op challenged co-op policies and practices that they believe unfairly prioritize members with more space than they need over members who are short bedrooms for the size of their households. They asked the court to order the co-op to do things differently. The court did just that.   

In this B.C. co-op, members own shares in a corporation that owns the residential units and collectively set the rules and policies of the co-op. (We sometimes call this an equity co-op.) The units are scattered among a number of buildings of varying styles and sizes. Members' initial investment and housing charges are set according to their income, not according to the attractiveness of the unit they occupy.

The members who took the co-op to court were a couple with two children occupying a two-bedroom basement suite in a ranch-style house. In 2013, when they moved in, their children were aged six and two. The elder child, now 12, is disabled and requires his own bedroom. Considered underhoused under the co-op's rules, they have been on an internal wait list for a bigger unit since shortly after they moved in.  

After years of having a policy that was ambiguous at best about the obligation of overhoused members to move, in early 2018, the parents of these two children pushed the members to adopt a clearer policy that would require overhoused members to move. Their plan backfired when that policy failed to get member support and instead, the members approved a new policy more -- not less -- tolerant of overhousing. 

In considering this case, the court said that policies should be written and implemented in accordance with the overall requirement in the co-op's incorporating documents to "provide sustainable and affordable housing" to its members. Part of the problem in this case was that many of those on the board were themselves overhoused. Because impartiality may not be possible in a case like this, it was essential that there be "transparent, scrupulous and consistent application of the policy." Among other things, the court ordered that "overhoused members accept an appropriately sized unit before any affected units are offered to other members" on the internal wait list or indeed any member applicant. 

Freeing up space

This is a B.C. decision based on B.C. legislation and a particular co-op's policies. We are not aware of any similar cases in Ontario. 

Some argue that given space is at a premium, for housing that was originally built with public money -- housing co-ops for example -- government should impose limits on the use of space so that resources are used for the betterment of the most people possible. That might be stating the case too strongly. However, we encourage co-op members who are aging in place to consider the goal of housing co-ops to provide affordable housing. Please know when it is time to step aside to free up space so younger families have the benefits that you experienced. This applies not just to co-op members -- we are at a time when everyone needs to consider the impact of the living space they occupy on others.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

Photo: Joe Mabel/Wikimedia Commons

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