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Are clients of home businesses allowed to use the visitor parking?

Most condo corporations have very limited visitor parking available to them. This requires that their use be regulated and monitored to ensure that they are available to bona fide visitors. In a recent decision, the CAT had to rule on whether owners could use the visitor parking for home office clients. Interesting lessons. It may be time to review your rules on this.

Facts of the case

The facts of this case are very specific and, without a doubt, this had an impact on the outcome.

This case did not deal with a “standard” condo corporation but rather with freehold townhomes which sat on parcels of land tied to a common element condominium corporation (these are called POTLs).  The common elements of the corporation included 6 designated visitor parking spaces.  The condo corporation did not govern the use of the actual townhomes (as they are freeholds sitting on parcels of land tied to the common element corporation).

The owner of one of these townhomes opened a massage therapy business, which operated out of her townhome. She worked 4 days a week and saw 4 to 5 clients each of these days.  Her customers parked in the visitor parking. Neighbours complained about the home-based business and the use of the parking by these clients.  It is important to note that this owner was permitted to operate a home-business out of her townhome.  Again, the common element condo corporation did not regulate the use of the townhomes.

The question

Ultimately, the question before the tribunal was limited to whether clients of this home business were allowed to use the visitor parking.

Governing documents

On the question of visitor parking, the declaration provided the following:

6 visitor parking spaces form part of the Common Elements for use by visitors to the owners of the [townhomes]…

Guests and visitors shall park only in areas designated as guest or visitor parking.

Position of the parties

The condo corporation argued that paying business clients are not guests or visitors and that, therefore, the clients parking in the visitor parking were in violation of the rules.

Decision

The rules did not define the words “visitor” or “guests”.  The CAT therefore used what it viewed as the reasonable and commonly understood meaning of these words.

The CAT concluded that the expression “visitor” denotes someone who attends for a short period of time, as opposed to a tenant or a resident. The customers attended the property and parked occasionally, even if weekly, for approximately an hour at a time, which, according to the CAT, made them fall within the definition of “visitor” – regardless of the fact that they paid for a service while on location.

Takeaways

It is important to note that this case turns on very specific facts that may not apply to most condo corporations.

The most important distinguishing factor is that the condo corporation in question could not regulate the use of the townhomes and that home business were not prohibited.  For this reason, the decision turned strictly on the meaning of the word “visitor”, which was not defined in the rules. As such, it was difficult to prohibit visitor parking on the basis of the reason for the visitor’s presence on site.

A visit is not limited to a social gathering.  Unless the condo rules provides otherwise, what makes a visitor a visitor is the frequency and length of the visit rather than the reason for the visit.  Think about it for a second, are cleaners or PSW/nurses not visitors on the strict basis that they are not visiting for social reasons or on the basis that they are getting paid for their visit? Of course not.

In my view, the outcome would have been very different if:

  • Home business were prohibited;
  • The rules had defined what constitutes a bona fide visitor;
  • Parking limits had been imposed (for instance on frequency or purpose of the use of visitor parking);
  • The matter did not involve a common element condo corporation and freeholds.

Time for you to review your parking rules to better regulate the use of your visitor parking spaces.

You can read the decision here.

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