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THE REGULATION OF PRIVATE SECTOR STUDENT ACCOMMODATION: A MULTI-JURISDICTIONAL SURVEY OF ISSUES AND RESPONSES

Robert G. DoumaniAird & Berlis LLP1

Barristers & SolicitorToronto, Ontario

INTRODUCTION

This paper deals with “studentification” which is an international phenomenon occurring

wherever there are concentrations of private sector student housing in a multiple occupancy form

in established neighbourhoods proximate to major post-secondary educational institutions.2

While the phenomenon is international, its causes, attributes and impacts are remarkably similar.

However, local response to studentification is varied.

As post-secondary education becomes increasingly essential for young people competing in

today’s job market, and as educational institutions expand to meet that demand often without a

concomitant increase in on-campus housing, student housing is satisfied by the private-sector in

the communities that surround such institutions.

This paper explores the experiences of a number of universities and their host municipalities. It

provides:

an extended definition of “studentification”;

looks at the causes of studentification;

describes the typical built form and occupancy profile for housing in multiple

occupation (“ HMOs”);

describes the concept of balanced communities;

1 With thanks to Miranda Spence an articling student at Aird & Berlis LLP for her research and hard work and to Tom Halinski, a partner at Aird & Berlis LLP for his careful editing and helpful comments.2 “Studentification”: A Guide to Opportunities, Challenges and Practice, (London: Universities UK, January 2006), at page 12 (“Universities UK”).

lists the actual and perceived negative impacts of studentification;

lists the potential positive impacts of studentification;

explores regulatory responses, including an in depth examination land-use

planning, licensing and other regulatory regimes;

describes human rights issues;

examines non-regulatory responses;

considers the issues of the adequate supply of affordable housing;

raises the issue of living conditions; and

draws some conclusions.

UNIVERSITIES AND MUNICIPALITIES EXAMINED

In the course of preparing this paper we explored the issues concerning off-campus private sector

student housing for the following universities and municipalities:

Acadia University Wolfville, Nova Scotia

Dalhousie University Halifax, Nova Scotia

Cardiff University Cardiff, Wales

Georgetown University Washington D.C.

McMaster University Hamilton, Ontario

Queen’s University Kingston, Ontario

Simon Fraser University Burnaby, British Columbia

Vanderbilt University Nashville, Tennessee

University of Leeds Leeds, UK

University of Malaysia Kuala Lumpur

University of Ontario Institute Oshawa, Ontario

of Technology

University of Waterloo Waterloo, Ontario

University of Western Ontario London, Ontario

STUDENTIFICATION DEFINED

Studentification is a process of urban change resulting from the repackaging of existing

(generally single family or semi-detached dwellings) housing by small scale entrepreneurs to

supply housing in multiple occupancy dwellings for university and college students in

neighbourhoods in close proximity to institutions of higher education.3 Our research has lead us

to conclude it also means the consequences of such change where there is a concentration of such

housing.4

“Studentification” encompasses four dimensions:

(a) social: the replacement and/or displacement of established residents with a transient, generally young and single, social grouping;

(b) cultural: the growth of concentrations of young people with shared cultures and lifestyles, and consumption practices, which in turn results in the increase of certain types of retail and service infrastructure;

(c) physical: the downgrading or upgrading of the physical environment, depending on the local context; and

3 D.P. Smith, “‘Studentification’: The gentrification factory?” in Gentrification in a Global Context: the New Urban Colonialism, Eds. R. Atkinson, G. Bridge (London: Routledge, 2005) at pp. 72-89.Soheil Sabri and Ahmad Nazri Muhamad Ludin, “‘Studentification’ Is It a Key Factor Within the Residential Decision-Making Process in Kuala Lumpur?” (Johor Bahru, Malaysia: Universiti Teknologi Malaysia, undated) (“Sabri, Ludin”) at p. 2.4 For example, in Kingston, Ontario three quarters of the full-time student population at Queen’s University lives within 1.5 kilometeres of the main campus. See: Residential Intensification in Kingston’s Near-University Neighbourhoods, p. 5

(d) economic: the inflation of property prices and a change in the balance of housing stock resulting in neighbourhoods becoming dominated by private rented accommodation and HMOs and decreasing levels of owner-occupation.5

The Centre for Community Studies at Vanderbilt University examined the Edgehill

neighbourhood in Nashville Tennessee6. The Centre found that the area was in transition with

increased housing prices, renovations and studentification.7 Many of the new residents moving

in to the neighbourhood were students from Belmont and Vanderbilt Universities by reason of

the close proximity of the neighbourhood to both institutions.8

Some have classified studentification as a “mutation” of gentrification. 9

CAUSES OF STUDENTIFICATION

There are two primary and related causes of studentification: the encouragement by senior

governments of post-secondary school education and the tendency of universities and colleges to

leave the accommodation of a growing number of their students to the private, off campus

market.10, 11

BUILT FORM AND OCCUPATION PROFILE

As a generalization, the repackaging of existing, generally single family or semi-detached

dwellings12, takes the form of the creation of individually controlled rooms and shared kitchen

and sanitary facilities and other common areas. The property is not usually owner occupied.

The occupants, sometimes up to 6 or 7,13 have, by way of a lease or license, exclusive possession

of a room and the right to occupy, in common with the other tenants or licensees, the kitchen,

sanitary facilities and other common areas.

5 Universities UK at page 12.6 Vanderbilt University, Peabody College, Centre for Community Studies, “Assessing Edgehill Community Assets, Needs, & Concerns: A Report of resident Interviews”, July 8, 2008 (“Vanderbilt Study”).7 Ibid., p. 11.8 Ibid., p. 12.9 Sabri, Ludin, p. 1.10 Vanderbilt Study, p. 8 11 Teresa Thomas, “Studentification, Neighbourhood Change and the Role of Planning in Kingston, Ontario, Summer 2010,Slide 2, Residential Intensification in Kingston’s Near-University Neighbourhoods” (“Thomas”), pp. 1 and 8 .12 City of Hamilton, Citizen Committee Report, August 17, 2009, Appendix “B”, p. 1 13 Ibid.

BALANCED COMMUNITIES

The National HMO Lobby is a network of local community organizations in the United

Kingdom whose purpose is to address the impact on their communities of concentrations of

shared houses or housing in multiple occupation (HMOs).14 It argues that the major problem

with studentification is a demographic imbalance. It asserts that imbalances the demographic of

residents of HMOs which it describes as typically being “young, transient and unstructured”.15

A balanced community was identified as one that approximates national demographic norms16

which reaches a tipping point when deviation from the norm becomes so large that the

community “tips from balance to un-balance”. 17

ACTUAL AND PERCEIVED NEGATIVE IMPACTS OF STUDENTIFICATION

The following are the reported negative impacts of studentification:

noise;18

increased litter and rubbish;19

absentee owners;20

parking;21

poor quality additions and renovations;22

failure to maintain houses;23

long weeds and grass;24

14 National HMO Lobby, Balanced Communities and Studentification Problems and Solutions, 2008 (“National HMO Lobby Report”).15 Ibid., p. 5.16 Ibid., p. 6.17 Ibid., p. 7.18 Sabri, Ludin, at p. 2.19 National HMO Lobby Report, p. 10; Sabri, Ludin, p. 3.20 Sabri, Ludin, p. 2; City of Hamilton, Citizen Committee Report, August 17, 2009, Appendix “B”, p. 421 City of Hamilton, Citizen Committee Report, August 17, 2009, Appendix “B”, p. 422 Sabri, Ludin, p. 323 National HMO Lobby Report, p. 10

posting of flyers and graffiti;25

student behaviour;26

students do not identify with the neighbourhood and they do not respect it;27

increased population density places pressure on fire, police, ambulance and other

services; and28

lifestyle friction; late night students versus working families.29

POTENTIAL POSITIVE IMPACTS OF STUDENTIFICATION

The following are the suggested benefits of studentification including, among others30:

prevents serious depopulation in many inner-City areas;

renovation of older properties to extend their useful lives;

higher/rising property values;

flexible part-time labour pool;

contributions to local businesses through purchasing; and

a critical mass of students can ensure transit links to the benefit of the community

as a whole.

It is to be noted that the assumption underlying some the foregoing benefits is that they will

“trickle-down” to the neighbourhood level such that the benefits are broad and not clearly

24 City of Hamilton, Citizen Committee Report, August 17, 2009, Appendix “B”, p. 425 Sabri, Ludin, p. 326 City of Hamilton, Citizen Committee Report, August 17, 2009, Appendix “B”, p. 4; Universities UK, p. 16.27 Vanderbilt Study, p. 15; Universities UK, p. 16.28 Universities UK, p. 1629 Ibid.30 Ibid., p. 13

definable.31 Conversely, the negative impacts of studentification are narrow and clearly

identifiable.32

REGULATORY RESPONSES

A suite of regulatory approaches have been used to address the impacts of studentification, a

number of which will be discussed in detail below. They are:

land issue controls such as areas of restraint;33

licensing;34

requiring owner occupancy;

property standards by-laws

noise control by-laws; and

parking by-laws.

LAND-USE CONTROLS

One of the major issues caused by HMOs is increased intensity of existing land uses. This is

particularly so in areas in which established single-family and semi-detached homes are

converted into student rental space. Accessory apartments or secondary suites, such as basement

apartments, may also be added. As a result, the total number of occupants of each dwelling may

become significantly greater than if each home was occupied by a single family. Accordingly,

limiting the conversion of single-family homes to HMOs in low-density neighbourhoods is an

important consideration for municipalities.35

The creation of HMOs is properly dealt with by a zoning by-law; the number of bedrooms in a

dwelling is a question of housing form, and is therefore a land use issue.

31 Ibid., p. 13.32 Ibid., p. 13.33 National HMO Lobby Report, p. 12.34 Ibid. p. 11.35 City of Waterloo, Student Accommodation Study, Final Report, DS04-47, July 30, 2004, p. 22.

Halifax Land – Use By-Law

In Nova Scotia, the Halifax Peninsula Land Use By-law limits the number of bedrooms that may

be included in semi-detached and duplex dwellings. This by-law does not simply apply to the

areas surrounding Halifax’s numerous post-secondary institutions, but to the whole of central

Halifax. Semi-detached and duplex dwellings easily lend themselves to being converted to

HMOs. Duplexes are defined in the by-law as houses that are divided on the horizontal plane,

and are limited to a total of six bedrooms for the entire house.36 Semi-detached dwellings are

houses that are divided vertically into two separate units, and they are limited to five bedrooms

per unit.37 Detached, single family dwelling houses are also limited in the by-law to a maximum

of five bedrooms.38 Any such dwelling containing more than the specified number of bedrooms

is automatically designated as a rooming house.39 Given the relatively recent enactment of the

zoning by-law, the by-law explicitly the grandfathers dwellings that were created prior to the

effective date of the by-law as mandated by the legal non-conforming use provision of Nova

Scotia’s Municipal Government Act.40

Legal Non-Conformity

One major limitation in the use of zoning to control HMOs is the requirement in some

jurisdictions that existing lawful land uses be grandfathered. For example, in Ontario, under

subparagraph 34(9)(a) of Ontario’s Planning Act,41 a zoning by-law may not apply to prevent the

use of any land, building or structure for a purpose that was lawful on the day the by-law was

enacted, so long as the land, building or structures continue to be used for that purpose. Similar

“legal non-conforming use” provisions are in effect in other provinces as well.42

In contrast, licensing by-laws are not limited by any similar grandfathering requirement.

36 Land Use By-law, Halifax Peninsula, 1978, Ed. 192, s. 1 “Duplex”.37 Land Use By-law, Halifax Peninsula, 1978, Ed. 192, s. 1 “Semi-Detached Dwelling”.38 Land Use By-law, Halifax Peninsula, 1978, Ed. 192, s. 1 “Detached Single Family Home”.39 Land Use By-law, Halifax Peninsula, 1978, Ed. 192, s. 1 “Rooming House”.40 Municipal Government Act, 1998, c. 18, s. 238.41 Planning Act, R.S.O 1990, c. P.13, as a amended42 B.C. (Local Government Act, [RSBC 1996] c. 323, s. 911), Alberta (Municipal Government Act, R.S.A. 2000, c. M-26, s. 643), Saskatchewan (Planning and Development Act, 2007, S.S. 2007, c. P-13.2, s. 88), Manitoba (Planning Act, C.C.S.M. c. P80, s. 86), Quebec (An act respecting Land use planning and development, R.S.Q. c. A-19.1, s. 113(18)), New Brunswick (Community Planning Act, c. C-12 s. 40), P.E.I. (Subdivision and Development Regulations, EC2000-693, made under the Planning Act, R.S.P.E.I. 1988, Cap. P-8, s. 8) and Newfoundland and Labrador (Urban and Rural Planning Act, 2000, S.N.L. 2000 c. U-8, s. 8) all permit legal non-conforming uses.

The Oshawa Experience

The way in which different types of dwellings are defined can have a significant impact on the

way in which by-laws are enforced against owners who convert their dwellings to HMOs.

This issue came before the Ontario Superior Court of Justice in The Neighbourhoods of

Windfields v. Death.43 In that case, the City of Oshawa and a local landowner brought an

application to stop approximately 30 single detached dwellings situated on lands zoned low-

density from being used as “lodging houses”. The homes had been altered internally and were

providing accommodation to students, who claimed they were using the dwellings as “single

housekeeping establishments” and not as “lodging houses”. The application was supported by

two major builders of new homes. The sales of their new homes were being adversely affected

by the existence of the HMOs.44

Oshawa had taken great care in its zoning by-law to define the terms “Dwelling Unit” and

“Lodging Unit” as the basic building blocks of its residential zoning. A “Dwelling Unit” was

defined as a unit consisting of one or more rooms, which unit contains a toilet and cooking

facilities and which is designed for use as a single housekeeping establishment.45 A “Lodging

Unit” was defined to mean one or more rooms within a lodging house used or designed to be

used for sleeping accommodations.46 Lodging units could contain cooking or washroom

facilities, but not both.

Building on these definitions, a “Single Detached Dwelling” was defined in the by-law as a

building that is free-standing, separate and detached from other main buildings or main structures

and which contains only a Dwelling Unit, but does not include a mobile home.47 A “Lodging

House” was defined to mean a building or part of a building, containing three to ten Lodging

Units, which does not appear to function as a dwelling unit. A lodging house included, without

limitation, a rooming house, a boarding house, and a fraternity or sorority house. It did not

include a hotel, a crisis care residence, a hospital, a group home, a correctional group home, a

43 Neighbourhoods of Windfields Ltd. Partnership v. Death (2008), 49 M.P.L.R. (4th) 183, aff’d (2009), 55 M.P.L.R. (4th) 159 (Ont. C.A.), leave to appeal refused 403 N.R. (note), 263 O.A.C. 399 (S.C.C.) (“Windfields”)44 Remarks by a representative of the City of Oshawa at the Town & Gown CMHC Symposium May 15 -17, 201145 Windfields at para 21.46 Windfields at para 26.47 Windfields at para 28.

bed and breakfast establishment or a nursing home. A lodging house could involve shared

cooking or washroom facilities and meals may or may not be provided to the residents.

Common areas such as living rooms also may or may not be provided.48

In reading Oshawa’s zoning definitions, the Court noted that the concepts of a “Single Detached

Dwelling” and a “Lodging House” were mutually exclusive. Each constituted a distinct,

permitted use in different zones. As only “Single Detached Dwellings” were permitted within

the R1 district in which the conversions were taking place, the residents/students had to argue

that they were using their houses as “a single housekeeping establishment” and thus met the

definition of being a “Dwelling Unit” within a “Single Detached Dwelling”.49 Windfields and

Oshawa argued that the houses were functioning as “Lodging Houses” and were not permitted

within the R1 zone.

The Court gave close consideration to the Oshawa Official Plan as evidence of how the City

intended to guide residential development. It was noted that while Oshawa supported residential

intensification and sought to ensure that various residential options were available for residents,

the City directed differing levels of residential intensity to different areas of the City in an effort

to make maximum use of transit and other city services.50 The decision that the Court sought to

give effect to the objectives of the City as expressed in its Official Plan.

The Court also repeatedly commented on the fact that Oshawa had designed its zoning

definitions to consider the “function” of the dwelling in question.51 This distinguished the case

from the Court’s prior decision in Good v. Waterloo (City).52 In Good, the Court analyzed a

licensing by-law and determined that “control” of the house (i.e. group control through collective

decision making) was the key factor in identifying whether a house was a “lodging house” or a

“residential unit”. In Windfields, however, the Court looked to the “function” of the house as a

use of land, as directed by the City’s zoning by-law, to determine whether it was a “Lodging

House” or a “Single Detached Dwelling”.

48 Windfields at para 26.49 Windfields at paras 126-127.50 Windfields at para 18.51 Windfields at paras 23, 38, 44, 45, 56, 57, 58, 68, 71, 74, 76.52 Good v. Waterloo (City), 1 M.P.L.R. (4th) 182, 190 O.A.C. 35, 72 O.R. (3d) 719 (Ont. C.A.) (“Good”).

The Court dealt with the distinction between licensing and zoning. When dealing with a

licensing by-law, the Court focuses on the “people” and how their actions speak to the business

being carried on at the site. When dealing with a zoning by-law, the Court will focus on the

“land” and how the building functions in terms of its permitted land uses. The Court held that,

“The activities of the occupants of a house internally in running their lives on a daily basis do not relate to the purpose and rationale for a zoning by-law nor are they the focus of the by-law in this case.”53

The Court in Windfields make a distinction between the nature of a “Lodging House” use and the

nature of a “Single Detached Dwelling” use. The Court held that the relationship of boarders to

a lodging house proprietor is an economic or commercial one, which is unlike the relationship

and function of a “Dwelling Unit”, which is commonly described as a use by a single family or

other similar basic living arrangement in society.54 In short, the Court found that a “Lodging

House” is akin to a commercial use, whereas a “Single Detached Dwelling” is purely a

residential use.

The distinction between the two uses was made, not only to separate the “function” of the uses,

but also as a means of segregating them for planning purposes, tied primarily to the intensity of

such uses. The Court in Windfields noted that Oshawa could not “people zone”, but the Court

did support Oshawa’s attempt to segregate uses on the basis of intensity.55 Under the zoning by-

law’s definitions, a “Single Detached Dwelling” could contain only one “Dwelling Unit”. This

“Dwelling Unit” could be rented or owned. By comparison, a “Lodging House” contains

between three and ten “Lodging Units” (where only one unit could be a “Dwelling Unit”).

Obviously, the latter is the more intense use of land, which enabled Oshawa, through a properly

enacted zoning by-law, to segregate the two uses into different zoning categories.

Having found that the defined the terms “Lodging House” and “Single Detached Dwelling” were

mutually exclusive, and having had regard to the intent of the City in determining how broadly to

define the phrase “single housekeeping establishment” (as found in the definition of “Dwelling

Unit”), the Court proceeded to consider the circumstances of each of the 30 homes to determine

53 Windfields at para 71.54 Windfields at para 45.55 Windfields at para 84.

if each was “functioning” in a manner that contravened the City’s zoning by-law. Those homes

that were found to be “functioning” as a “Lodging House” were held to be contravening the

provisions of the City’s R1 zoning category and were enjoined from continuing.56

The utility of mutually exclusive definitions should specifically be noted as such definitions

assist in drawing a bright line between low-density, single-resident dwellings and higher-density,

multiple-resident lodging houses.

Finally, the Court held that a “lodging house” function was akin to a commercial enterprise,

whereas a residential dwelling was not.57 This further supports a zoning distinction being made

between the two uses without straying into impermissible “people zoning”.

Other Municipalities

Other municipalities have chosen to define “lodging houses” or “single detached dwellings” in a

different manner. For example, in Halifax, a “lodging house” is not defined in terms of the use of

a kitchen or washroom, but based on whether the bedrooms have functioning locking devices on

the doors.58 Differences in distinctions such as this may have an impact on the “function”

analysis for the purpose of determining whether a shared student house may or may not be

defined as a lodging house. They may also affect whether or not a particular dwelling is seen to

be operating as a commercial property. Municipalities should be aware of these distinctions

when deciding how to define the “building blocks” of their own zoning by-laws.

LICENSING

The licensing of HMOs can take the form of special purpose licensing directed at HMOs

specifically or it can become part of the more politically charged licensing of private rental

accommodation.

In Ontario municipalities may adopt by-laws that prescribe a licensing regime for the operation

of lodging housing and other forms of rental accommodation. A licensing by-law does not

govern the use of land. Rather, it regulates the business and commercial activity of renting

56 Windfields at para 182.57 Windfields at para 45.58 Land Use By-law, Halifax Peninsula, 1978, Ed. 192, s. 1 “Lodging House”.

buildings for residential use. This form of licensing may not be available in every province. In

Ontario, a broad system of licensing was only introduced in 200659 (effective January 1, 2007)

by the repeal and replacement of Part IV of the Municipal Act, 2001.60 This broad permission

system extends to the licensing of rental accommodation, including HMOs.

The experience of several Ontario municipalities with this new power is instructive.

Oshawa

The City of Oshawa, the home of the newly created University of Ontario Institute of

Technology (“UOIT”), was first off the mark. Oshawa had no experience with student housing

until the UOIT was created with its campus being located in an area of large and expensive

homes that at the time were about five years old. A number of the homes were being turned into

HMOs with the attendant problems.61 The City of Oshawa limits the number of bedrooms per

rental unit by means of its landlord licensing by-law.62 The rental unit licensing by-law limits the

number of bedrooms per rental unit to either four or six, if they are located on particular streets.

It also limits the amount of gross floor area that may be devoted to basement-level bedrooms.

Accordingly, Oshawa’s licensing by-law can effectively limit the number of bedrooms available

for rent in any property, regardless of whether or not it previously contained a greater number of

legal bedrooms. This aspect of the by-law was particularly controversial when passed. One

reason for the controversy is that UOIT had only been in existence since 2003. Accordingly,

landlords who wished to capitalize on the newly-created student rental market acted quickly to

renovate existing properties, only to be restricted by the landlord licensing by-law a few years

later in 2008. Perhaps in response to the resulting backlash, the landlord licensing by-law did

provide certain exceptions for houses located on certain specified streets, in which up to six

bedrooms were permitted. Those exceptions, however, expired on February 11, 2010 and

February 11, 2011, respectively.

59 Municipal Law Statute Amendment Act, 2006, S.O. 2006, c. 32, Bill 130, ss. 1(2), 10(2).60 Municipal Act, 2001, S.O. 2001, c. 25.61 Remarks by a representative of the City of Oshawa at the Town & Gown CMHC Symposium May 15 -17, 201162 Oshawa By-law 120-2005 (Schedule “K”).

Hamilton

Council of the City of Hamilton in 2008 directed staff to examine the licensing of rental

accommodation, including HMOs. Two citizen advisory Committees were formed. Ultimately

Council determined to defer the licensing of HMOs for consideration in the larger question of

licensing rental housing generally.63 Instead Council opted for using its existing by-laws64 and

approved a two year pilot project of enhanced enforcement by hiring six new part-time

inspectors and one full-time licensing clerk.65

Hamilton’s Planning and Economic Development Department has also directed staff to

investigate and report back on Voluntary Rental Housing Registry Programme for Wards 1-8,

which are proximate to the university.66

Waterloo

The City of Waterloo is the latest Ontario municipality to adopt a licensing regime. The by-law

is City-wide and licenses all types of rental housing, including HMOs.67 Council received an

initial report on the proposed rental housing licensing by-law on January 10, 2011. At that point,

Council directed staff to undertake a public consultation process, which resulted in three public

open houses at which the public provided feedback. Staff made changes to the proposed by-law

based on those changes and reported back to Council on April 11, 2011. Some of the changes

incorporated as a result of the public consultation process included:

(a) grandfathering existing lodging house licence-holders, who held licences pursuant to the lodging house by-law that was being repealed along with the adoption of the new residential rental housing licensing by-law68;

(b) exempting existing units from the bedroom gross floor area limit if they were previously built to the standard in the building code, and received a permit from the City of Waterloo;

(c) simplifying the process for tenants to sublet to other tenants; and

63 Economic Development and Planning Committee Report 09-023 (November 3, 2011) adopted by Council of the City of Hamilton November 11, 2009.64Noise By-law 03-020, Parking By-law 01-218, Property Standards By-law 10-221, Zoning By-law 05-20065 Remarks by a representative of the City of Hamilton at the Town & Gown CMHC Symposium May 15 -17, 201166 City of Hamilton Planning and Economic Development Committee resolution adopted May 4, 2010.67 Remarks by a representative of the City of Waterloo at the Town & Gown CMHC Symposium May 15 -17, 201168 City of Waterloo Residential Rental Licensing By-law, By-law 2011-047, s. 18.

(d) reducing the number of requirements and conditions under the originally-proposed program.69

The new licensing regime was adopted by Council on May 9, 2011 and is to take effect April 1,

2012.70

The program sets out five types of licences to carry on a Residential Rental Business as defined

in the by-law:

(a) Class “A” licences are required for any rental unit that does not fall into another category;

(b) Class “B” licences are required for rental units in owner occupied properties;

(c) Class “C” licences are required for rental units with five or more bedrooms;

(d) Class “D” licences are required for recognized “lodging houses” (i.e. those rental units which had valid lodging house licences under the previous Lodging House By-law No. 00-140); and

(e) Class “E” licences are required for all temporary rental units.71

Each of these classes of licences imposes different requirements on the composition of the

property. For example, Class “A” rental units may have no more than four bedrooms, each of

which is a minimum of seven square metres, and which together make up no more than 40% of

the rental unit’s gross floor area.72 In Class “B” rental units, the bedrooms may compose up to

50% of the rental units gross floor area, whereas the remaining classes of licence impose no

restriction on the floor area taken up by bedrooms.73

While the different classes impose different restrictions in some regards, the landlords of all

classes are subject to certain requirements including ensuring that the properties satisfy

Waterloo’s Property Standards By-Law, the Building Code Act, 1992, the Building Code, the

Fire Protection and Prevention Act, 1997, S.O. 1997, c.4 and its regulations, and any order made

69 City of Waterloo, By-law Enforcement, Rental Housing Licenses, Background: http://www.waterloo.ca/desktopdefault.aspx?tabid=2816 (accessed May 26, 2011).70 City of Waterloo Residential Rental Licensing By-law, By-law 2011-047.71 City of Waterloo Residential Rental Licensing By-law, By-law 2011-047, s. 3.1.72 City of Waterloo Residential Rental Licensing By-law, By-law 2011-047, Schedule 1, s. 1.73 City of Waterloo Residential Rental Licensing By-law, By-law 2011-047, Schedules 2-5.

by the Medical Officer of Health.74 Failure to abide by any provision of the by-law may result in

revocation or suspension of the licence.75 The Director of By-Law Enforcement also has the

authority to revoke or suspend licences on such terms as are appropriate, but must have regard to

the impact of such a decision on the tenants.76

London

London, Ontario has also adopted a licensing regime for rental accommodation, including

HMOs. London’s by-law was enacted on September 21, 2009, and took effect March 1, 2010.77

Rather than designating classes of rental units, like Waterloo’s by-law, the London by-law

simply exempts numerous forms of rental housing from the licensing regime. Rental units in

apartment buildings, townhouses or stacked townhouses, in owner-occupied buildings, or in

buildings where the owner has temporarily vacated the premises, are not subject to the

requirements of the Residential Rental Units Licensing By-law.78 Based on these exclusions, it

appears that London’s by-law is aimed exclusively at non-owner-occupied HMOs.

Applications for licences may be investigated by municipal or provincial departments or

agencies, including but not limited to the Director of Building Controls, the Manager of By-law

Enforcement, the Fire Chief and the Medical Officer of Health.79 Although rental units may be

investigated prior to the issuance of a licence, and although the by-law provides that the City

shall be permitted to inspect the rental unit at any time, the City requires landlords to submit a

self-certification checklist to ensure compliance with the Property Standards By-law along with

their application.80 A Fire Prevention inspection report must also be completed. This

documentation is not required by the by-law itself, but has been mandated by virtue of the

Licence Manager’s discretion to require certain documentation to be submitted along with the

74 City of Waterloo Residential Rental Licensing By-law, By-law 2011-047, s. 4.1 (a).75 City of Waterloo Residential Rental Licensing By-law, By-law 2011-047, s. 5.1.76 City of Waterloo Residential Rental Licensing By-law, By-law 2011-047, ss. 5.2 and 5.3.77 City of London Residential Rental Units Licensing By-law, CP-19.78 City of London Residential Rental Units Licensing By-law, CP-19, s. 3.1.79 City of London Residential Rental Units Licensing By-law, CP-19, s. 5.4.80City of London, Instructions for Applying for a Residential Rental Unit Licence: http://www.london.ca/Planning_and_Development/Land_Use_Planning/PDFs/RRUL_Instructions.pdf.

licence application.81 Accordingly, this requirement may be subject to change at the discretion of

the Licence Manager.

St. Catherines

St. Catherine’s regulates lodging houses through its general business licensing by-law.82 The

City has also established a Student Housing Liaison Committee, but has not yet made any formal

attempt to establish a rental housing licensing regime.

United Kingdom

The prevalence of HMO licensing in the U.K. appears to be the result of a strong pro-licensing

lobby which has publicized the impact of studentification.

Licensing of HMOs is a popular response to studentification in the United Kingdom. Rather than

being mandated at the municipal level, as it is in Canada, such licensing is provided for by

statute at the national level. Most recently, the Private Rented Housing (Scotland) Act 2011 was

enacted,83 which amends existing licensing requirements. Licensing of HMOs was first

introduced in Scotland through the The Civic Government (Scotland) Act 1982 (Licensing of

Houses in Multiple Occupation) Order 2000.84 Although nationally mandated, licences are

granted by the local authority.85 Licensing of HMOs was introduced in England in the Housing

Act, 2004.86 Pursuant to this act, licensing of HMOs became mandatory throughout England as

of April 6, 2006.

A distinction from the Canadian licensing regime is the specific focus on HMOs as the target of

licensing. As discussed, HMOs are specifically defined as occupied by multiple unrelated

persons. This definition has been part of the U.K.’s Housing Act since 1985.87 Such a focus

would likely be viewed as discriminatory under the human rights regimes in place in Canada, in

that it places restrictions on housing on the basis of the occupants’ personal characteristics. This

topic will be explored in more detail later on in this paper.

81 City of London Residential Rental Units Licensing By-law, CP-19, s. 5.2(e).82 St. Catherine’s By-law 2005-318.83 S.S.I. 2011 asp 14.84 S.S.I. 2000 No. 177.85 S.S.I. Housing Act (Scotland) 2006, s. 124(2).86 U.K. S.I. 2004, c. 34.87 Housing Act, 1985, U.K. Public General Acts 1985, c. 69.

Leeds

The City of Leeds, U.K., is home to the University of Leeds and the Leeds Metropolitan

University. Leeds is also the seat of the U.K.’s National HMO Lobby, which is made up of

dozens of community organizations. These organizations are particularly concerned with

studentification and the high concentration of HMOs within municipalities, and accordingly are

devoted to encouraging governments to adopt mandatory residential rental licensing. Their

efforts have been documented in media reports and in their own publications.88

Cardiff

Cardiff, Wales, is home to four universities: Cardiff University, University of Wales Institute

(Cardiff), University of Glamorgan and the Royal Welsh College of Music & Drama. Mandatory

HMO licensing applies to all HMOs throughout Cardiff which have three or more storeys, and

are occupied by five or more persons. Licences cost £700 and last for five years. In contrast to

the Canadian examples of licensing regimes, houses that are split into flats are not required to be

licensed, except in some defined instances, such as when they are located above commercial

establishments.89

The licensing regime in Cardiff is specifically designed to ensure that landlords are “fit and

proper persons”, that property standards and fire codes are adhered to, that tenant relations are

maintained, that properties can be maintained by the council if the landlord fails to meet the

required standards, and so that high risk HMOs can be identified. Cardiff has also imposed

additional licensing requirements in the Cathays ward, which contains a high number of

HMOs.90

REQUIRING OWNER OCCUPANCY

In many communities, non-student residents are upset by students’ attitudes towards the

properties they rent. Neighbours allege that student residents do not respect municipal

regulations regarding garbage pick-up and snow clearing, and that they otherwise let the

88 Angelique Chrisafis, “Two Square Miles of Housing Hell” The Guardian, October 24, 2000: http://www.guardian.co.uk/uk/2000/oct/24/angeliquechrisafis; National HMO Lobby Report, supra. 89 Cardiff Council, Housing, Private Rented Accommodation, Licensing of Houses in Multiple Occupation: http://www.cardiff.gov.uk/content.asp?nav=2867%2C3424%2C5082%2C4942%2C4949&parent_directory_id=286590 Cardiff Council Houses in Multiple Occupation Additional Licensing (Cathays) Scheme 2010.

properties they occupy fall into disrepair. Alternatively, student renters may be reluctant to

complain about poor conditions due to fears of retribution or eviction.91

Municipalities have proposed a variety of responses to this issue. One common response is to

attempt to impose a requirement that the landlord live on-site. Owner-occupied rental properties

are often assumed to have a minimal impact on the neighbourhood, based on the assumption that

the property is managed by the owner, who lives on-site as his or her primary residence.92

A requirement that the landlord live on-site cannot be imposed by a zoning by-law, as such a by-

law would effectively regulate who resides in a particular dwelling, not the land use of that

dwelling. A landlord licensing regime, however, could require the landlord to actually live in the

rental accommodation. Assuming such a requirement is legal, it may nevertheless be difficult to

enforce. This is because it may be exceedingly difficult to prove that a landlord does not reside in

the rental property – even with evidence that the landlord maintains an alternate residence.93

A potentially more effective alternative to an on-site landlord requirement is provided in

Oshawa’s licensing by-law. Potential landlords must submit, as part of their application for a

Rental Unit license, a maintenance plan identifying measures that the Landlord will implement

for the purpose of complying with Oshawa’s Lot Maintenance By-law.94 The landlord must

specifically identify who is responsible for grass cutting, debris and waste removal, snow

clearing, salting, garden maintenance, waste storage, and placing waste and recyclables at the

curb. The municipality also specifically provides bins that are to be used by residential tenants

for waste and recyclable storage.95

PROPERTY STANDARDS BY-LAWS

Municipalities may enact property standards by-laws that prescribe standards for the

maintenance of properties. These by-laws generally authorize inspections of properties in order

91 Staff Report re: Rental Residential Licensing Program, Planning Committee, City of London, August 24, 2009.92 City of Waterloo, Development Services, Rental Housing Licensing Review Discussion Paper, June 16, 2009, p. 8.93See Re Stratford (City) Zoning By-law No. 201-2000, [2003] O.M.B.D. No. 99 (O.M.B.). Despite working four or five days a week in Toronto, the owner of a Stratford bed and breakfast was found to be meeting the “principal residence” requirement of the Stratford zoning by-law (bed and breakfasts were permitted as home occupations in residential zones).94 Oshawa By-law 127-2007.95 Oshawa By-law 120-2005, Schedule “K”; Residential Rental Housing Licence Application.

to ensure compliance, require properties that do not meet the prescribed standards to be repaired

and maintained, and may authorize municipalities to take appropriate steps to repair such

properties where the owner refuses to comply.

In Ontario, the power to enact property standards by-laws is provided by section 15.1 of the

Building Code Act, 199296. This section requires a municipality to address property conditions in

its official plan, or to adopt a policy statement in relation to property conditions, as a

precondition to adopting a property standards by-law.97 It also provides that property standards

by-laws may not distinguish between properties occupied by related or unrelated persons.98

Accordingly, a municipality may not impose different property standards requirements on HMOs

as compared to single family homes.

Many of the municipalities we explored have adopted a property standards by-law.99 In general,

these by-laws require the exterior of properties to be kept in a neat and tidy condition, with yards

and balconies kept clear of undesirable material.

Kingston’s property standards by-law in particular addresses concerns that have may arisen from

student use. Section 4.42 provides that “Any furniture that is manufactured for interior use shall

not be placed outside of a dwelling.” This section has been identified by Queen’s University as

particularly applicable to students, and is accordingly set out on the Queen’s University website

as a requirement of which students should be aware.100

NOISE CONTROL BY-LAWS

Noise control by-laws are intended to limit activity that unreasonably disturbs the peace and

tranquillity of a neighbourhood. Noise control by-laws tend to recognize that, in some

circumstances, potentially disturbing activity may become necessary or desirable: for example,

noise caused by emergency vehicles or noise in connection to municipal parades.101 Accordingly,

96 S.O. 1992, c. 23.97 Building Code Act, 1992, s. 15.1(3).98 Building Code Act, 1992, s. 15.1(4).99 For example, City of Oshawa, By-Law 1-2002; City of Kingston By-law No. 2005-100; City of Waterloo, By-Law 2010-095; City of London Property Standards By-law CP-16.100 Queen’s University website, http://www.queensu.ca/studentaffairs/safety/home/bylaws.html, accessed May 26, 2011.101 Halifax Regional Municipality By-law N-200, ss. 4(1)(g) and (h).

noise control by-laws may limit disturbances only at specified times of day, or may provide

exceptions for noise created by certain types of activity.

Halifax’s noise control by-law provides a general prohibition against “any activity that

unreasonably disturbs or tends to disturb the peace and tranquillity of a neighbourhood.”102 It

then attaches a schedule listing activities that are deemed to create unreasonable disturbances,

such as the operation of a motor vehicle horn except where required or authorized by law or in

accordance with good safety practices.103 The schedule also lists certain activities that are

deemed to create unreasonable disturbances if they are audible at a point of reception, and if they

occur at certain specified times.104 For example, audible yelling, shouting, hooting, whistling or

singing is prohibited before 7:00 a.m. and after 9:30 p.m. Monday-Friday, before 8:00 a.m. and

after 7:00 p.m. on Saturday, and before 9:00 a.m. and after 7:00 p.m. on Sunday and holidays.105

Violation of the noise control by-law may result in fines which range from as low as $300 for a

first offence to as high as $10,000.

PARKING BY-LAWS

Parking by-laws may be adopted by municipalities to restrict parking on specified streets, at

specified times, or in particular areas of private property, such as a front or side yard. Unlike

some other types of by-law, the fact that parking by-laws are designed to impact only specified

streets allows municipalities to impose different requirements in the areas proximate to the

relevant post-secondary institution, without fear of a potential human rights complaint.

Violations generally result in a fine.

For example, London’s Traffic & Parking By-law imposes restrictions on parking on certain

streets proximate to the University of Western Ontario from Monday to Friday, between

September 1st and April 30th.106 In order to park on those streets during the specified times, the

vehicle must display a Residential Parking Pass obtained from the City.

102 Halifax Regional Municipality By-law N-200, s. 3(1).103 Halifax Regional Municipality By-law N-200, Schedule “A”, Part 1, s. 3.104 Halifax Regional Municipality By-law N-200, Schedule “A”, Part 2.105 Halifax Regional Municipality By-law N-200, Schedule “A”, Part 2, s. 9.106 City of London By-Law PS-111, s. 16 and Schedule 6.1

Similarly, Kingston’s Medical and University Parking By-law requires vehicles parked on

certain specified streets to display a parking permit obtained directly from Queen’s University.107

This requirement represents a collaboration between the university and the municipality to deal

with an issue that affects both bodies.

HUMAN RIGHTS ISSUES

Regulation of HMOs may give rise to a human rights complaint. Such complaints are likely to

occur when attempts to regulate student housing through land use by-laws effectively result in

impermissible “people zoning.” People zoning, which involves using zoning by-laws to regulate

people rather than land, is generally viewed as discriminatory.

R. v. Bell

People zoning was first addressed by the Supreme Court of Canada in the landmark decision R.

v. Bell.108 In that case, at issue was a zoning by-law made by the Borough of North York. The

by-law defined “Dwelling Unit” as a separate set of living quarters designed or intended for use

by an individual or one family alone “Family” was defined in the by-law as a group of two or

more persons living together and interrelated by bonds of consanguinity, marriage or legal

adoption occupying a dwelling unit.109 Douglas Bell, who was living with two individuals

unrelated to him by blood, marriage or adoption, was charged with a violation of the by-law. In

ruling that the by-law was unauthorized, the Supreme Court of Canada held that the by-law’s

requirement that occupants be family members was such an oppressive or gratuitous interference

with the rights of those subject to it as could find no justification in the minds of reasonable men.

Further, the Court found that the legislature never intended to give municipalities authority to

make such rules, and that the device of zoning by reference to the relationship of occupants

107 City of Kingston By-law 2010-128, ss. 4.28 & 4.29.108 [1979] 2 S.C.R. 212 (“Bell”).109 Bell at p. 215.

rather than the use of the building is ultra vires the powers granted to the municipality under the

Planning Act.110

The Supreme Court of Canada’s clear statement that land use controls can only be used to

regulate the use of land, and not the type of people who use that land, including the relationships

that exist between them, continues to hold true.

Licensing By-Laws

Licensing by-laws may also be potentially discriminatory. For example Oshawa’s landlord

licensing by-law was threatened with the possibility of a human rights complaint. Prior to the

passage of the by-law, Barbara Hall, the Human Rights Commissioner for Ontario, sent a letter

to Oshawa Council indicating that certain elements of the by-law may contravene the Human

Rights Code. In particular, Ms. Hall identified the cap of four legal bedrooms for use in each

rental house in the designated area as being potentially discriminatory.111

As a solution to this issue, the Commissioner suggested that houses that were originally designed

or legally renovated to include more than four bedrooms should be exempt from the by-law.

Alternatively, she suggested that the by-law be applied city-wide, so that it did not specifically

target student residences.

The basis for the Commissioner’s concerns was that the cap of four legal bedrooms may result in

the exclusion or restriction of young people from the neighbourhood, and result in a loss of

housing. She noted that if the cap was implemented because of the type of tenants who are likely

to live there, the by-law could be seen as stereotyping young people as being less responsible and

less likely to look after their property than others.

In the result, the by-law was passed, and it appears that no complaint to the Human Rights

Commission has yet been filed. In fact, the City of Oshawa invited the Commissioner to continue

to comment on its ongoing efforts to solve its problems relating to student housing. The

110 Bell at p. 223.111 Ontario Human Rights Commission, Letter from Barbara Hall, Ontario Human Rights Commissioner, to City of Oshawa Task Force regarding student housing, dated December 11, 2008. Available at http://www.ohrc.on.ca/en/resources/news/oshawahousing/view.

Commissioner responded positively on March 30, 2010, commending certain aspects of the

municipality’s housing strategy and offering suggestions for further improvements.112

The Commissioner’s concerns may nevertheless have a chilling effect on municipality’s efforts

in this area. For example, the Commissioner sent a copy of the letter identifying her concerns to

Hamilton’s council during its consideration of a similar landlord licensing by-law.113 The

Commissioner continues to be invited to advise on municipalities’ student housing policies, most

recently speaking at the City of Waterloo Council meeting at which the residential rental

licensing by-law was passed.114

Zoning By-Laws

Although not specifically dealing with student housing, the Ontario Municipal Board addressed

the human rights implications of a discriminatory zoning by-law in Advocacy Centre for Tenants

Ontario v. Kitchener (City).115

In this case, the City of Kitchener had enacted an official plan amendment and a zoning by-law

amendment dealing with the Cedar Hill neighbourhood. Almost 20% of Cedar Hill’s residents

are persons with disabilities and/or persons in receipt of public assistance (“the target

population”). Property values in the area had decreased significantly. The amendments included

a ban on all new facilities for the target population, and on all new dwellings other than single

detached homes, except where approved on a site-by-site basis.

In its decision, the Board made reference to the fact that, although the new by-laws were in

conformity with the applicable Provincial Policy Statement and Official Plan policies, the City’s

112 Ontario Human Rights Commission, Comment of the Ontario Human Rights Commission on the City of Oshawa's Student Accommodation Strategy, dated March 30, 2010. Available at: http://www.ohrc.on.ca/en/resources/submissions/oshawastudenthousing.113 City of Hamilton, Planning and Economic Development Department, Parking and By-law Services Division, Report dated May 25, 2009.114 Ontario Human Rights Commission, City of Waterloo Council Meeting – May 9, 2011 – Proposed Rental Housing Licensing By-law, Speaking Notes. Available at: http://www.ohrc.on.ca/en/issues/housing/waterloobylaw/view.115 Advocacy Centre for Tenants Ontario v. Kitchener (City) (2010), O.M.B.D. Case No. PL050611 (“Kitchener”).

process leading to the enactment of the by-laws exhibited no evidence that officials had given

thought to these policies.116

With respect to the application of the Ontario Human Rights Code, the Board said:

The Code would appear to prohibit a by-law or planning instrument that had a discriminatory effect, subject to the statutory defence of “reasonableness and bona fide under the circumstances”, notably undue hardship. A municipality which sought to justify the imposition of a discriminatory standard/requirement/policy might be expected to establish that it made real and meaningful efforts to accommodate the needs of persons adversely affected by the standard/requirement/policy, or sought less discriminatory approaches to achieving the objective. It might also be expected to establish, on a substantive level, that it is not possible to accommodate, short of undue hardship.117

Areas of Concern

The Commissioner’s comments regarding the Oshawa landlord licensing by-law, in combination

with the Ontario Municipal Board’s decision in Kitchener, indicate two major areas of concern

for municipalities enacting by-laws to address student housing issues.

First, municipalities must be sure that their by-laws do not demonstrate a discriminatory purpose.

To determine whether a by-law has a discriminatory purpose, the court will look to the process

that led to its enactment. As noted by the Commissioner, the landlord licensing by-law may be

discriminatory if it was specifically enacted to prevent a particular group of people from living in

a particular area. The Kitchener decision confirms that this may be the case even if the by-law

conforms to the governing planning instruments. Accordingly, municipalities must be sure to

have regard to proper planning purposes, and not simply their concerns about student residents,

when enacting such by-laws.

Second, municipalities must be sure that their by-laws do not demonstrate a discriminatory

effect. As noted by the Board in Kitchener, a municipality must demonstrate a meaningful

attempt to mitigate any adverse effects through accommodation or less discriminatory measures.

In practice, this will likely mean that, if a municipality enacts a by-law that has the effect of

reducing the amount of housing available for students or other low-income renters, it must make

a meaningful attempt to ensure that such housing becomes available.

116 Kitchener at pp. 33-34.117 Kitchener at p. 44.

NON-REGULATORY RESPONSES

Some universities and municipalities have adopted innovative non-regulatory approaches to

dealing with frictions between off-campus private sector student housing and their neighbours.

Georgetown University

For the fall 2010 term, Georgetown University introduced two community advisors who will live

in the Burleith and West Georgetown neighbourhoods, where there is a concentration of off

campus housing. These advisors are modelled after residence hall directors. The advisors help

students deal with property maintenance, proper trash disposal and landlord and tenant relations,

among other issues with a view to enhancing town-gown relations.118 In addition to the

community advisors, Georgetown has adopted the Student Neighbour Assistance Program. As

part of this program, trained student affairs professionals and security personnel patrol

neighbourhoods adjacent to the campus on weekend evenings. Georgetown also funds three off

duty Metropolitan Police Department officers to patrol the neighbourhoods.119

The Washington, D.C. Department of Planning has praised Georgetown’s efforts as “a

significant factor in helping prevent objectionable impacts on neighboring communities.”120 Data

cited in the Department of Planning’s recent report suggests that the implementation of these

programs has reduced the number of problematic “interactions” between students and local

residents.121 Georgetown has committed to continuing the programs, and to providing regular

reports to the community.122

Acadia University

Acadia University in Wolfville, Nova Scotia has also adopted a proactive approach to issues

relating to student rental housing. The university has established a Community Action Team

comprising representatives from the community, the student body, the university and the RCMP.

118 News Release, Georgetown University, August 24, 2010 119 Washington, D.C. Department of Planning Pre-Hearing Submission Report on the Georgetown University 2010-2020 Campus Plan, March 31, 2011.120 Ibid. at p. 3.121 Ibid. at p. 4.122 Ibid.

Students or residents who experience a conflict with a neighbour are encouraged to contact the

Community Action Team for a collaborate resolution.123

Acadia has made efforts to integrate the student and resident populations. Wolfville Council has

adopted a policy of working in co-operation with Acadia to develop partnerships that provide

greater public access to university recreation and cultural facilities.124 Accordingly, Acadia’s

K.C. Irvin Environmental Centre and adjacent Harriett Irving Botanical Gardens and an

accessory trail system, located on university-owned land, are open to the public and form part of

the Town of Wolfville’s Municipal Planning Strategy.125

University of Leeds

The University of Leeds has adopted a multi-faceted approach to address the concentration of

student housing in the City of Leeds. It employs a full-time community liaison officer to bring

the University and communities together. It developed a neighbourhood help-line service which

tries to resolve noise, traffic and other issues.126

Simon Fraser University (“SFU”)

In Burnaby, Simon Fraser University was founded with the intention that it would anchor a dense

residential community. Developing the plan required significant negotiation between the

university and the municipality. In order to secure an official plan for the university lands, SFU

transferred more than 320 hectares of university-owned land to Burnaby, which was added to the

Burnaby Mountain Conservation Area. The SFU Community Trust, which is managed by its

trustee, the SFU Community Corporation, provides university-owned land to private developers

by means of a prepaid, 99-year leases.127 Based on this model, the university and the

municipality together exert complete control over where student housing may be located.

This model, in which the university and the town are able to grow and work together, has had

very positive results. The vibrant, sustainable community that resulted from the City of

123 University of Acadia, Student Affairs: http://studentaffairs.acadiau.ca/community-action-team.html.124 Town of Wolfville, “Municipal Planning Strategy”, approved by Council September 23, 2008, s. 7.5.1.125 Town of Wolfville, “Municipal Planning Strategy”, approved by Council September 23, 2008. 126 University of Leeds Press Release, January 25, 2006127 UniverCity on Burnaby Mountain, Governance: http://www.univercity.ca/about_us/governance.101.html

Burnaby’s collaboration with SFU was recently awarded the Federation of Canadian

Municipalities’ inaugural award for Integrated Neighbourhood Development.128

ADEQUATE SUPPLY OF AFFORDABLE HOUSING

In many municipalities where students occupy single family homes that have been converted to

shared rental accommodation, students are motivated to do so by a lack of other available

affordable off-campus housing.

Some municipalities have recognized this gap and are making concerted efforts to solve it. In

Burnaby, the Simon Fraser University Official Community Plan (“SFU OCP”), which applies to

the areas surrounding the university, explicitly encourages the inclusion of student and other

affordable housing within the residential neighbourhood.129 The municipality demonstrated its

commitment to this goal in 2002, when it amended the SFU OCP to permit secondary suites

inside condominium units. Not only are secondary suites permitted, they are excluded from the

specified maximum dwelling unit count. The relatively new community has not faced the same

issues as older neighbourhoods regarding studentification, as the neighbourhood was explicitly

designed around the university to accommodate student needs.130

Another means of ensuring an adequate supply of rental housing is to permit the construction of

high-density apartment buildings in areas that are less likely to disturb existing residents. In

Waterloo, the City’s Development Services department conducted a study of student

accommodation in 2004 that included research into the projected growth of the local universities,

student preferences for accommodation, and transit patterns. On the basis of this information,

Waterloo was able to identify the preferred areas to zone as high-density housing, and also to

predict how many students were likely to move into such housing.131

The construction of appropriate housing is particularly important for municipalities that have

faced significant difficulties relating to student residents in neighbourhoods that have

traditionally been occupied by families. In Oshawa, following the controversy surrounding the

128 Federation of Canadian Municipalities, Sustainable Community Awards 2011, http://www.fcm.ca/English/View.asp?mp=1510&x=1509.129 Simon Fraser University Official Community Plan, article 2.5.8130 UniverCity on Burnaby Mountain website: http://www.univercity.ca/about_us/overview.2.html. 131 The City of Waterloo, Development Services, “Student Accommodation Study Final Report” DS04-47, July 30, 2004, p. 18.

adoption of its landlord licensing by-law, the municipality adopted a Student Accommodation

Strategy aimed at quantifying the future demand for student housing, identifying the appropriate

locations for new student housing, and facilitating the construction of housing in those

locations.132 The report recommended, among other items, that the City’s Development Services

Department initiate a public process to consider amendments to the relevant Secondary Plan and

Zoning By-Law to permit high-density housing in certain neighbourhoods proximate to the

university, and that medium-density housing be permitted in other proximate areas.133

LIVING CONDITIONS

Often overlooked in the studentification literature we reviewed is an examination of the means of

ensuring that the students are housed in a safe and healthy environment. Of primary importance

is fire safety in terms of both prevention and warning and evacuation in case of a fire. High

occupancy levels can produce unsafe loads on a dwelling’s electrical and heating systems,

particularly if they have been built to service loads imposed by typical occupancy levels in a

single family dwelling.

Enforcement of standards within an HMO or any building used for residential occupancy may be

hampered by requirements that the inspector must have permission to enter, failing which he or

she must obtain a Court order permitting entry. For example in Ontario, the Fire Protection and

Prevention Act, 1997 provides that the Fire Marshal, an assistant to the Fire Marshal or a fire

chief may, without a warrant, enter and inspect land and premises134 for the purposes of

assessing fire safety.135 If entry is refused, the fire marshal, assistant or fire chief may apply to a

justice of the peace for a warrant authorizing entry. A warrant shall be issued if the justice of the

peace is satisfied on evidence under oath that there are reasonable grounds to believe that entry

on the lands or premises is necessary to assess fire safety and, that the inspector has been denied

entry, and there are reasonable grounds to believe that the inspector will be denied entry.136 Even

132 City of Oshawa “Student Accommodation Strategy” March 31, 2010.133 City of Oshawa “Student Accommodation Strategy” March 31, 2010, pp. 20-22.134 “Land and premises” is defined to include any “buildings, structures or things situated on or attached to the land or premises” (s. 1(2)). “Dwelling” is not defined in the Fire Protection and Prevention Act, 1997.135 Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, s. 19. 136 Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, s. 20.

finding someone to grant permission to enter in an HMO that is owned by an absentee landlord is

problematical. 137

Licensing by-laws can assist in overcoming this problem by requiring the owner of an HMO to

maintain it in compliance with health and safety by-laws and to permit an annual inspection as a

condition of the license or its renewal. For example, as noted above, London’s Licence Manager

will not issue a licence without a recent fire inspection report having been provided or an

inspection scheduled by the Licence Manager.138

CONCLUSIONS

Studentification is a phenomenon that is unlikely to go away so long as the economy and

government policy demand an increasingly educated work force and post secondary education

institutions allocate their resources to meeting that need through educational facilities as opposed

to on-campus student housing.

In the circumstances of blighted neighbourhoods studentification offers a chance for renewal

through renovation.

For existing neighbourhoods there does not appear to be a one-size fits all solution. It appears to

use a combination of land-use, licensing and other local controls coupled with innovative

community outreach programs can be effective addressing the impact of studentification.

9345785.3

137 Remarks by a representative of the City of Waterloo at the Town & Gown CMHC Symposium May 15 -17, 2011138 City of London, Instructions for Applying for a Residential Rental Unit Licence: http://www.london.ca/Planning_and_Development/Land_Use_Planning/PDFs/RRUL_Instructions.pdf.

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