This matter dealt with an application by the Tenant for an Order requiring the Landlords to comply with the Act by not unreasonably withholding their consent to sublease the manufactured home pad site in question.

In her application, the Tenant referred to herself as the Tenant of the manufactured home site but later confirmed that she is the Administrator for the estate of the Tenant (her mother's estate).  Consequently, the Tenant's application and the style of cause in this matter are amended to reflect the correct name of the Tenant.

The issue to be decided was: is the Tenant entitled to an Order requiring the Landlords to grant her consent to sublet the pad site?

The background and evidence showed that the Landlord said that on September 15, 2008,  he on behalf of the owner of the Park, gave each resident a Notice advising them that any future occupants would have to be 55 years of age or older.  The Landlord said that there were some existing tenants of the rental property who were under the age of 55 who were allowed to stay.  However, the Landlord claimed that any assignments or sublets of the pad sites thereafter required his prior approval and that as part of that approval, applicants had to provide proof of age.  The Landlord claimed that since September 2008, no new assignments or sublets have been approved for persons who are under 55 years of age.  Also the Landlord claimed that in September 2008, a sign was put by the front entrance of the Park stating it was "55+".

The Tenant argued that there was no provision in the tenancy agreement or the Park Rules that restricted her from subletting the pad site to a person under 55 years of age.

The Tenant also argued that she was advised by the tenants of another site that the Landlords had not requested proof of their ages when they applied to sublet.   The Landlord disputed this and claimed that it was obvious that both of these tenants were over 55 years of age but that in any event he did ask one of them for proof of his age.  The Tenant further argued that she was advised by at least one other resident of the park that she had not received the Landlord's notice in September 2008 (which the Landlord denied).

After analysis, the Tenant admitted that she had not fully complied with s. 44 of the Regulations to the Act which requires a tenant to provide to the Landlord a written request to sublet together with specific supporting documentation.  However, the Landlord agreed to waive reliance on this requirement only for the purposes of this hearing as he believed he was entitled to withhold his consent to the Tenant's request to sublet the manufactured home site to a prospective tenant under 55 years of age.

The Tenant argued that the Landlord was not entitled to withhold his consent to her subletting the manufactured home site to an individual under the age of 55 because there was no provision in the Park Rules or Tenancy agreement to that effect.  The Landlords relied on section 7.3 of the Park Rules as authority for the 55+ policy which states that "before subletting a unit the landlord's written permission must be obtained.  The landlord reserves the right to refuse tenants it feels are not compatible with the majority of the tenants in the park."

Section 48(d) of the Regulations to the Act states that a Landlord may withhold consent to sublet if,

"there is not at least one proposed subtenant in a proposed sublease who meets the age requirement in a park where every manufactured home site is reserved for rental to a tenant who has reached 55 years of age or to 2 or more tenants, at least one of whom has reached 55 years of age, as set out in section 10(2)(b)(i) of the Human Rights Code [permitted age requirements]"

The Landlord claimed that all occupants of the manufactured home park were given a notice dated September 15, 2008 (a copy of which he provided as evidence) which indicated that as of that date the Landlord's policy was that the park would be "a senior's park 55+ [and that] all future tenants will have to provide proof of age."  The Landlord argued that each resident of the Park was given written notice of this policy on September 15, 2008 and the sign at the entrance clearly displayed this policy.  The Landlord claimed that since this time, the policy has been consistently applied and that all applications for assignment or sublet approval require proof of service.  The Landlord also claimed that no applications have been approved where the applicants have not been able to satisfy the are requirement.

Based on the evidence of both Parties, the Landlords unilaterally imposed the "seniors 55+" policy under general power they reserved to themselves under the Park Rule 7.3 noted above.  While s. 48(d) of the Regulations to the Act indicates that a Landlord may establish a 55+ Park, it does not authorize the Landlords to do so without having to observe other requirements of the act or Regulations.  In the normal course, s. 30 of the Regulations to the Act says that the establishment of a new rule must be referred to a park committee (if there is one) for consideration and vote under s. 22 and 23 and is enforceable by the Landlords only if
a.  it applies to all tenants in a fair manner; and
b.  the rule does not change a material term of the tenancy agreement.

It was found that the Landlord's "55+" policy significantly restricts a mobile home owner's right to sell or rent their manufactured homes.   For example, the Tenant claimed that because she is under the age of 55 years, she would be unable to transfer her mother's mobile home into her name.  The Tenant also claimed that the Landlord's policy has also created a financial hardship for her mother's estate as due to the age of the mobile home it cannot be moved to another Park and her ability to sell it is restricted by the 55+ policy.

Given the significant repercussions of the Landlords' "55+" Policy to mobile home owners in the Park, it was found that it is not sufficient for the Landlords to impose the "55+" policy under the broad power granted under Park Rule 7.3 and thereby circumvent the Park Rule enactment procedure that requires, for one, that the Rule will apply to all tenants in a fair manner.  Consequently, it was found that the Landlords may not refuse the Tenant's application to sublet on the grounds that her proposed tenant is under 55 years of age until such time as the Landlords enact a Park Rule (in accordance with the Regulations to the Act) to that effect or include it as term of the Tenant's tenancy agreement.

However, as the Tenant has not complied with s. 44 of the regulations, it was ordered that she re-submit her application to sublet to the Landlord together with the documentation required under s. 44(3) of the Regulations.  The Landlords will then have the opportunity to determine if the proposed subtenant is otherwise acceptable.

In conclusion, the Tenant's application is granted in part on the terms set out above.  As the Tenant has been successful in this matter, she is entitled pursuant to s. 72 of the Act to recover from the Landlords her $50.00 filing fee for this proceeding and ordered that she may deduct that amount from her next rent payment when it is payable to the Landlords.