Seasonal Residency Restrictions
In the late-1990’s, there was a fierce battle in the Community that was taken to the courts and was resolved by a unanimous judgment at the final level for these kinds of cases, the Ontario Court of Appeal. What was at issue was whether the City of Burlington and Cedar Springs Community Club could impose limitations on cottage use to preserve the seasonal nature of the community. After a painful, two-year process that pitted neighbours against one another, the court made a unanimous decision in 1999 that supported the vast majority of members and seasonal use was maintained. At the heart of this issue was an increasing desire among some older members of the community to change their seasonal cottages into homes for their retirement and live at the Springs year-round.
During and following the court process, the Club put in place measures to clarify residency restrictions. There are three facets to the Seasonal Residency Restrictions. The Club monitors and has controls for each one. A Member with a designated seasonal cottage is subject to all three:
(a) a cottage may not be a permanent residence;
(b) during the off-season November 1st to May 1st of the following year they must:
1. Prohibition on the seasonal dwelling being a member’s permanent residence.
There can be no more than 12 of the original 83 Cedar Springs member properties that may be used as a “permanent residence". The Burlington Official Plan says “The conversion of seasonal residential dwellings to permanent residences within the Cedar Springs Community shall not be permitted”. First passed in 1975, this section of the Plan was upheld by the Ontario Municipal Board in 1980. The legal authority for the Club's seasonal residency by-laws flows from the Burlington Official Plan and the Club is bound to use definitions that the Courts would use in interpreting the Plan. Although not defined in the Official Plan, “permanent residence” is well-defined in the common law. The Club's lawyer has stated without ambiguity in a written legal opinion, the common-law legal definition of permanent residence for purposes of the Board and, more importantly, a Court interpreting the By-laws, Restrictive Covenants and Undertakings is: Permanent Residence and/or Primary Residence means the place where a person makes his or her home or where he/she dwells permanently or for an extended period of time and to which, whenever absent, he/she has the intention of returning; A person can have only one permanent residence at a time; and, once a Permanent Residence is established, it is presumed to continue until the person demonstrates that a change has occurred. Although not defined in the Official Plan, “seasonal dwelling” is defined in some Ontario Planning Act regulations as “a separate building containing only one dwelling unit to be used for recreation, rest or relaxation by a family but not occupied or intended to be occupied as a permanent residence or home.” In 1981, under agreement with the City to enforce the Official Plan policy, the Club passed By-law 13 “the designation of permanent residences” which set out the 12 lots that could be used as a permanent residence and designates all the rest as seasonal residences. In 1988, the Club passed By-law 15, Article 9 to define the off-season as November 1st to May 1st of the following year and set out a sanction of removing the Privileges of Membership if a member breached the by-law. By-law 13 tacitly necessitates a seasonal lot owner to have a permanent residence outside Cedar Springs and By-law 15 Article 9 requires a member to actually reside at another residence during the off-season. The Official Plan policy and the Club's arrangement with the City to implement it give the Club the legal authority to have By-law 13 and By-law 15, Article 9. By-laws 13 and 15 were challenged and upheld by the Court of Appeal for Ontario in 1999 which stated: “The by-laws are authorized by the letters patent, and are in compliance with the Official Plan and the agreement with the Town of Burlington”. These By-laws have not been repealed and remain in force today.
So that cottage purchasers have legal notice under property law of these land use restrictions, they are contained in the Restrictive Covenants put on title to each cottage lot in the present form since 2000. The Restrictive Covenants prohibit use
(A) except with Board consent,
In other words, each purchaser since then has promised the Club not to make their cottage their permanent residence. They made that promise with independent legal advice.
Note that designating your cottage as your “principal residence”, as defined for Canadian income tax purposes under IT-120R6, is not prohibited.
2. Control of the actual amount of use of a seasonal dwelling during the off-season
Having a permanent residence outside the Springs was not always successful in controlling a member from actually using their seasonal recreational cottages as a year-round residence, also contrary to the purpose of the Official Plan. So in addition, new members as consideration for granting membership were required sign a Seasonal Residential Undertaking limiting off-season use, to occasional weekends or to three days of winter occupancy separated by five days of non-occupancy, for example. Requiring Undertakings began in the 1960’s and continued to 1999. From 1997 to 2000, Undertakings prohibiting use as a primary residence were put on title to cottage lots at the time of transfer of ownership. Under Ontario Health Regulation, for example, a “primary place of residence means the place with which a person has the greatest connection in terms of present and anticipated future living arrangements, the activities of daily living, family connections, financial connections and social connections, and for greater certainty a person only has one primary place of residence, no matter how many dwelling places he or she may have, inside or outside Ontario." From 2000, Restrictive Covenants were put on title to the cottage property that cottages would not be used “other than for summer seasonal recreational purposes” and during the off-season “other than for recreational use on occasional weekends and statutory holidays”.
In 1988, By-law 15, Article 9 was passed prohibiting cottages from being used as a person’s only residence during the off-season. This requirement to actually reside in another residence was clarified in 1998 by reference to the legal meaning of those terms. They must “live, dwell, abide, sojourn, stay, remain, lodge”... “at some place of abode with no present intention of definite or early removal and with the purpose to remain for undetermined period, not infrequently”. So checking into a hotel several nights between November 1st and May 1st does not constitute residing in another residence. Neither does any other personal presence at some place of abode for some determined period or for infrequent periods. So staying at rental accommodations for determined periods with no intention of indefinite renewal does not qualify as residing at a residence. It was also clarified that the Board was not seeking proof of a permanent residence somewhere else, but that the member must not make his Cedar Springs cabin his permanent residence. The member must have another residence available (it could be but does not have to be his permanent residence) for use at any time during the entire off-season November 1st to May 1st so that the Cedar Springs cottage is never used as the only residence during the period. And he must reside there during the off-season so that his cottage is not converted to a year round residence, contrary to the purpose of the Bylaws.
In 1998, members were also granted blanket consent by a resolution of the Board (“Board Consent”) to use their seasonal recreational properties during the off-season only on weekends, statutory holidays or other days chosen at a member’s discretion, all not to exceed a total of 60 days during the off-season, unless some greater number of days has been approved by the Board upon prior written request. At the same time, the Club began an annual Winter Residency Survey to collect a member’s off-season residence municipal address and mailing address (if different) to publish in the Census and monitor compliance with By-law 15, Article 9 as to whether a member was actually residing at another residence during the off-season.
The 60-day criterion is not a by-law or rule. If use of their seasonal recreational cottages does not exceed a total of 60 days during the off-season, this blanket approval Board Consent means members subject to Restrictive Covenants on their Lot or pre-1997 Seasonal Residency Undertakings have temporary one-year relief from the one covenant therein in which they promised they would use their cottages only on occasional weekends and statutory holidays during the off-season [Restrictive Covenant Section 3(a), see (A)(2) above]. Since it would be equivalent to repealing a By-law (which requires 75% member approval), Board Consent cannot grant blanket relief from:
Even with the Board Consent, to comply with By-law 15 Article 9, a member must reside at another residence during the off-season. However, By-law 15 Article 9 does not specify how many days a member must actually stay at another residence to constitute residing there and not at Cedar Springs. Instead, the By-law requires the Board to form an opinion as whether the member is actually residing at Cedar Springs or at another residence during the off-season. So even if a member maintains and stays at another residence, the Board has said a member must vacate his cottage for all but 60 days of the off-season or the Board may form an opinion under By-law 15 Article 9 that, contrary to the purpose of the Burlington Official Plan policy, conversion from summer seasonal recreational use to year round use has taken place nevertheless.
In its Board Consent resolution, the Board provided that if the Member restricts the use of their seasonal recreational property to 60 days (or less) in total during the off season, the Board will not form an opinion, for purposes of Article 9 of By-Law 15, that conversion of a seasonal residence dwelling to year round use has taken place. This statement does not tell the whole story about Article 9 of By-law 15. The By-laws cover the following uses: only residence, year-round residence and permanent residence. Since it would be equivalent to repealing a By-law, Board Consent cannot grant blanket relief from any By-law. The Board indicated its interpretation of only residence and conversion to year round use as explained in the paragraph above. However, the By-laws also prohibits conversion from seasonal residential use to a permanent residence. If a member was found to have converted their cottage to a permanent residence, the Board is still able to form that opinion for purposes of discipling a member under Article 9 of By-Law 15.
In August 2002, the members amended Rule #4 Cottage Rental to say: Seasonal residences, as defined under the Club’s by-laws, shall not be rented during the off-season (November 1st to May 1st of the following year) and shall not be granted rent-free use in excess of six days during the off-season. (i.e. a Member’s 60 days of off-season use privilege cannot be transferred to or used by another Member).
3. Prohibition on the conversion of seasonal dwellings into year-round homes for permanent residence.
Control of the conversion of summer cottages into year-round homes began at the request of the then Town of Burlington in 1959, when Club Board approval was required and certain conditions met before building permits were issued by the Town for such a conversion (i.e. for winter occupancy). In 1975 the City of Burlington prohibited further conversions when it passed the Official Plan amendment “The conversion of seasonal residential dwellings to permanent residences within the Cedar Springs Community shall not be permitted.” The City’s concern, confirmed in 1999, is the environmental impact from extended use of cottages and “that if the habitable area of the cottage were to be increased, that would lead to more frequent use of the cottage, either by the existing [owner] or some future owner.” Since 2000, Restrictive Covenants by cottage owners to comply with the Burlington Official Plan were signed and put on title to each cottage property each time it changed hands or other action on title was taken. In addition, every member has an obligation under the Third Schedule of the General Building Scheme (the “Flatt Agreement”) that the construction of any building shall be of a rustic nature in keeping with those already constructed (i.e a summer seasonal recreational dwelling). When renovating or rebuilding, Cedar Springs cottages do not have to comply with numerous sections of the Ontario Building Code.
Based on a survey of the membership in 1998, in 2002 the Club put in place design guidelines for construction that controlled the size and form of seasonal cottages. For example, new cottages were limited in general to the footprint of the old cottage, to a height to make it appear as a single story from the road view and to a size in keeping with neighbouring cottages. The objective was to conserve the stock of small seasonal recreational dwellings and not permit them to be replaced by large homes capable of being used as a permanent residence, contrary to the Burlington Official Plan.
4. So is Everyone Subject to the Same Rules?
Not every cottage owner is subject to the same rules. The Burlington Official Plan, the Flatt Agreement and the Club By-laws and Rules apply to everyone. But cottage owners are also subject to a wide variety of seasonal residency contracts (undertakings and restrictive covenants) individually signed by them over the years since the 1960’s. As time went by, those contracts became more comprehensive, gradually plugging loopholes and abuses of the seasonal residency restrictions and have now been in their current form for more than a decade. So the enforcement of those contracts could result in different outcomes for those members whose last change in ownership title took place prior to the last decade. In addition, many cottage owners are subject to written undertakings to government authorities and to conditions on development permits to maintain seasonal use in compliance with the Burlington Official Plan policy. The Board Consent resolution provides no interpretation of and no relief from those obligations. A cottage owner with a NEC development permit with the condition that the cottage remain seasonal cannot convert to permanent residence use without violating that condition. The legal result is the same as if the development had been done without a permit. Consequences include fines and removal of the development.
Compliance with and enforcement by the Club of the Restrictive Covenants and Undertakings on title since 1997 is as follows:
1. The Board must pass the 60 day Board Consent resolution annually to be legally effective. There can be no assurance that the Board will do this in future and so use during the off-season may be limited to weekends and holidays.
2. The Winter Survey is a contract that must be entered into annually for the cottage owner to obtain the annual resolution's 60 day relief from the restriction to limit use to weekends and holidays. The Club does not ask in the annual Winter Survey for the municipal address of a cottage owner's permanent residence (if it is different from the off-season residence address provided) but it does ask to confirm that a Cedar Springs cottage is not being used as a permanent or year-round residence as interpreted in the Restrictive Covenants to include domicile, primary residence, full-time residence or only residence.
3. If the Winter Survey is not completed satisfactorily, then the Board must do its own due diligence to determine whether or not the cottage owner has made his cottage a permanent residence or otherwise not complied with seasonal residency restrictions. Such due diligence would include determining whether the owner maintains another available year-round residence address in Canada or is demonstrably a permanent resident of another country.
4. In the absence of successful due diligence, the Board will then be obligated to protect the seasonal nature of Cedar Springs by taking additional enforcement action to preserve the legal enforceability of the restrictive covenants and undertakings on title.
5. Such action would commence with letters from the Club's legal counsel and would culminate with an application to the Courts seeking a court order for the cottage owner to demonstrate to a judge compliance with the restrictive covenants or undertaking on title to his property. For example, a judge could request a certified copy of a completed Page 4 of the cottage owner's Canadian passport. Breach of a court order by a cottage owner would be in contempt of court, a most serious offence.
6. Failure to take the above enforcement actions would be a breach of the Board's legal obligations and would subject individual Board members to personal legal liability, in breach of new statutory duties under the new Not-for Profit Corporations Act to be in effect July 1st, 2013. Under the new legislation, the Board is legally obligated to act with or without any resolution by members at a general meeting of members (e.g. a resolution to declare a member not in good standing is no longer necessary).
Compliance with and enforcement by the Club of Seasonal Residency By-laws has the following considerations:
The Burlington Official Plan and the Club By-laws apply to everyone. Without legally enforceable seasonal residency by-laws, we will lose the seasonal nature of Cedar Springs.
In the mid-1990's, another seasonal cottage community called Indian Park Association had its seasonal residency by-laws struck down by the Ontario Court of Appeal. The three judges determined that a cottage community club has no legal authority to take away private property rights by passing by-laws to restrict the use of member cottage owners’ private properties. The result for Indian Park was that the vast majority of its community converted from seasonal to permanent residences and the Association is now in the process of dissolving and donating its 80 acres of common lands to the local municipality.
Using the Indian Park case precedent, Warren McCrea tried to get Cedar Springs seasonal residency by-laws struck down at the Ontario Court of Appeal. In our case, with two of three of the same judges, it was confirmed that the Indian Park reasoning applied to Cedar Springs as well, in that there is no legal authority for the Club to amend by-laws, replace by-laws or pass new by-laws to restrict cottage lots to seasonal use. However, the Court upheld our existing seasonal residency by-laws on the basis that the Club was simply enforcing by arrangement with the City of Burlington seasonal residency use restrictions already established by municipal authorities. In short, government authorities may restrict the use of private property without consent, but members of a cottage community club may not.
So to keep the only seasonal residency by-laws we may have, our interpretation and enforcement must meet the test of the Ontario Court of Appeal and remain “in compliance with the Official Plan and the agreement with the Town of Burlington”. This means our seasonal residency by-laws are limited to the Official Plan scope, purpose and meaning of the words in the Official Plan. Changing or enforcing our by-laws to be more, less or different from the Official Plan is beyond the Club's legal authority and will cause our seasonal residency by-laws to be struck down (i.e. become legally unenforceable).
The Burlington Official Plan says the following is permitted: “the operation of a private, self-sustaining development with a maximum of 12 year-round residences and 82 seasonal cottages at the Cedar Springs Community located on Cedar Springs Road. The conversion of seasonal residential dwellings to permanent residences within the Cedar Springs Community shall not be permitted;”. Under our arrangement with the City to enforce this, our seasonal residency by-laws designate the 12 permanent residence lots and recite this intent.
Even if a seasonal cottage owner has a residence elsewhere, the Board has resolved that an owner’s cottage must be vacated for all but 60 days during the off-season, November 1st to May 1st. Otherwise, the Board may form an opinion under the by-law that conversion from summer seasonal recreational use to year round use has taken place nevertheless, a conversion contrary to the purpose of the by-law. Our problem is that some members have come to believe that staying away all but 60 days during the off-season means that they may now convert their Cedar Springs cottage into their permanent residence, which is also contrary to a clearly-stated purpose of the by-law. If the Club tries to enforce just one aspect of the by-law while agreeing to the breach of a purpose of the by-law (i.e conversion to a permanent residence), we lose the benefit of the McCrea case and the seasonal residency by-laws are struck down.
To keep this from happening and losing the seasonal nature of Cedar Springs, the Board received a written legal opinion from the Club's lawyer that their enforcement efforts required the following (among other things) to be added to the annual Winter Survey for 2011-12:
“By signing this Winter Survey the Member: (i) confirms that his/her/their seasonal recreational cottage will not be used as a permanent residence, year round residence, full time residence or only residence"
That declaration was dropped from the annual Winter Survey for 2012-13 and thereafter.
5. Can the Residency Rules Be Changed?
To answer this question requires an understanding of the desired change. Some have advocated that anyone should be allowed to make Cedar Springs their permanent residence and not have to reside in another residence during the off-season so long as they are not in Cedar Springs for a minimum of four months during the winter. That is, being at Cedar Springs a maximum of 60 days during the off-season should be implemented as the rule and the only residency rule.
There are two distinct sets of residency rules: those established by government authority; and those that were consented to by a private property owner of a cottage lot.
The government policy is the Burlington Official Plan which prohibits the further conversion of seasonal residential dwellings to permanent residences. The Club agreed with the City of Burlington to implement this policy by passing: By-law 13 “By-law re the designation of permanent residences” to designate all member-owned lots except for the 12 specified lots as seasonal residences; and By-law 15 Article 9 to declare a cottage owner a member not in good standing if they permitted their cottage to be used as an only residence during the off-season. By-law 13 tacitly necessitates a seasonal lot owner to have a permanent residence outside Cedar Springs and By-law 15 Article 9 requires a member to actually reside at another residence during the off-season.
The residency rules that were consented to by a cottage lot owner include undertakings signed as consideration for granting membership and the Restrictive Covenants signed by a cottage lot owner and registered on title to their cottage lot.
The Official Plan policy and the Club's arrangement with the City to implement it give the Club the legal authority to have By-law 13 and By-law 15, Article 9. In 1999, the Court of Appeal confirmed that the Club could pass these land use restriction by-laws under its Letters Patent pursuant to implementing an arrangement with the City of Burlington and declared our By-law 13 and By-law 15 Article 9 valid on that basis. The Club has found no other legal authority to pass or amend a By-law to impose any new seasonal land use restrictions on cottage lots and expect them to be legally enforceable under property law. The bottom line is that the Club cannot change its residency bylaws without agreement from the City. The City cannot agree to the changes some have proposed without amendment to the Burlington Official Plan. Just as the original 12 were exempted from the new policy put in the 1975 Burlington OP amendment, some additional number of lots could be exempted or grandparented from certain new rules some might propose for a new OP amendment. Even then, it is uncertain under property law as to whether all proposed changes could be enforced on all existing cottage owners, particularly those members who have not consented and vote against a by-law amendment.
With respect to residency rules consented to by a private property owner of a cottage lot, there are two ways that the Club could implement change. Under property law, the Club requires an owner’s consent to give up their private property rights. For example, owners have given consent under the Flatt Agreement and the Restrictive Covenants for certain land use restrictions on cottage lots. So one way to change residency restrictions is an amendment to the Flatt Agreement with 100% approval in writing by all property owners (notice of this amendment would need to be added to new Restrictive Covenants over time prior to each cottage sale). The second way is consent now by every one of the 71 seasonal members to put new residency Restrictive Covenants on title of each of the cottage properties. Once the Club has either (a) the Flatt Agreement amendment or (b) 100% of the 71 seasonal cottage owners with new Restrictive Covenants, the members at a meeting would then with a 75% vote repeal the residency By-laws subject to the City agreeing to repeal the applicable sections of the Burlington Official Plan. The Club would then negotiate with the City a repeal or replacement of the current OP section with something else that does not conflict so that the Club is not subject to the City’s (or other agencies’) enforcement of the existing Burlington OP by other means. A general Niagara Escarpment Commission Development Control permit would also be required for the conversion of seasonal use dwellings to permanent use, a process that could trigger requests for various professional environmental studies. See Dakin Report in Residency.
If the Club were to repeal the residency By-laws before achieving the applicable 100% owner approval, it would leave no seasonal land use restrictions on those cottage owners who have not consented, thereby adding those lots to the group of 12 properties without seasonal restrictions enforceable by the Club.
6. Links
Click to the History section of this website that sets out a full history of the development of the Residency Restrictions.
Click to the Winter Survey page for a PDF of the Winter Survey for seasonal residents.
During and following the court process, the Club put in place measures to clarify residency restrictions. There are three facets to the Seasonal Residency Restrictions. The Club monitors and has controls for each one. A Member with a designated seasonal cottage is subject to all three:
(a) a cottage may not be a permanent residence;
(b) during the off-season November 1st to May 1st of the following year they must:
- actually reside in another residence;
- make only recreational use of their cottage on occasional weekends and statutory holidays or, if the Board’s annual temporary waiver resolution is in effect, not more than 60 days; and
- not rent out their cottage; and
1. Prohibition on the seasonal dwelling being a member’s permanent residence.
There can be no more than 12 of the original 83 Cedar Springs member properties that may be used as a “permanent residence". The Burlington Official Plan says “The conversion of seasonal residential dwellings to permanent residences within the Cedar Springs Community shall not be permitted”. First passed in 1975, this section of the Plan was upheld by the Ontario Municipal Board in 1980. The legal authority for the Club's seasonal residency by-laws flows from the Burlington Official Plan and the Club is bound to use definitions that the Courts would use in interpreting the Plan. Although not defined in the Official Plan, “permanent residence” is well-defined in the common law. The Club's lawyer has stated without ambiguity in a written legal opinion, the common-law legal definition of permanent residence for purposes of the Board and, more importantly, a Court interpreting the By-laws, Restrictive Covenants and Undertakings is: Permanent Residence and/or Primary Residence means the place where a person makes his or her home or where he/she dwells permanently or for an extended period of time and to which, whenever absent, he/she has the intention of returning; A person can have only one permanent residence at a time; and, once a Permanent Residence is established, it is presumed to continue until the person demonstrates that a change has occurred. Although not defined in the Official Plan, “seasonal dwelling” is defined in some Ontario Planning Act regulations as “a separate building containing only one dwelling unit to be used for recreation, rest or relaxation by a family but not occupied or intended to be occupied as a permanent residence or home.” In 1981, under agreement with the City to enforce the Official Plan policy, the Club passed By-law 13 “the designation of permanent residences” which set out the 12 lots that could be used as a permanent residence and designates all the rest as seasonal residences. In 1988, the Club passed By-law 15, Article 9 to define the off-season as November 1st to May 1st of the following year and set out a sanction of removing the Privileges of Membership if a member breached the by-law. By-law 13 tacitly necessitates a seasonal lot owner to have a permanent residence outside Cedar Springs and By-law 15 Article 9 requires a member to actually reside at another residence during the off-season. The Official Plan policy and the Club's arrangement with the City to implement it give the Club the legal authority to have By-law 13 and By-law 15, Article 9. By-laws 13 and 15 were challenged and upheld by the Court of Appeal for Ontario in 1999 which stated: “The by-laws are authorized by the letters patent, and are in compliance with the Official Plan and the agreement with the Town of Burlington”. These By-laws have not been repealed and remain in force today.
So that cottage purchasers have legal notice under property law of these land use restrictions, they are contained in the Restrictive Covenants put on title to each cottage lot in the present form since 2000. The Restrictive Covenants prohibit use
(A) except with Board consent,
- as a permanent or year-round residence (interpreted to include domicile, primary residence, full-time residence or only residence),
- other than for summer seasonal recreational purposes (interpreted to include during the off-season only recreational use on occasional weekends and statutory holidays) and
- other than in accordance with the residency By-laws of the Club; and
In other words, each purchaser since then has promised the Club not to make their cottage their permanent residence. They made that promise with independent legal advice.
Note that designating your cottage as your “principal residence”, as defined for Canadian income tax purposes under IT-120R6, is not prohibited.
2. Control of the actual amount of use of a seasonal dwelling during the off-season
Having a permanent residence outside the Springs was not always successful in controlling a member from actually using their seasonal recreational cottages as a year-round residence, also contrary to the purpose of the Official Plan. So in addition, new members as consideration for granting membership were required sign a Seasonal Residential Undertaking limiting off-season use, to occasional weekends or to three days of winter occupancy separated by five days of non-occupancy, for example. Requiring Undertakings began in the 1960’s and continued to 1999. From 1997 to 2000, Undertakings prohibiting use as a primary residence were put on title to cottage lots at the time of transfer of ownership. Under Ontario Health Regulation, for example, a “primary place of residence means the place with which a person has the greatest connection in terms of present and anticipated future living arrangements, the activities of daily living, family connections, financial connections and social connections, and for greater certainty a person only has one primary place of residence, no matter how many dwelling places he or she may have, inside or outside Ontario." From 2000, Restrictive Covenants were put on title to the cottage property that cottages would not be used “other than for summer seasonal recreational purposes” and during the off-season “other than for recreational use on occasional weekends and statutory holidays”.
In 1988, By-law 15, Article 9 was passed prohibiting cottages from being used as a person’s only residence during the off-season. This requirement to actually reside in another residence was clarified in 1998 by reference to the legal meaning of those terms. They must “live, dwell, abide, sojourn, stay, remain, lodge”... “at some place of abode with no present intention of definite or early removal and with the purpose to remain for undetermined period, not infrequently”. So checking into a hotel several nights between November 1st and May 1st does not constitute residing in another residence. Neither does any other personal presence at some place of abode for some determined period or for infrequent periods. So staying at rental accommodations for determined periods with no intention of indefinite renewal does not qualify as residing at a residence. It was also clarified that the Board was not seeking proof of a permanent residence somewhere else, but that the member must not make his Cedar Springs cabin his permanent residence. The member must have another residence available (it could be but does not have to be his permanent residence) for use at any time during the entire off-season November 1st to May 1st so that the Cedar Springs cottage is never used as the only residence during the period. And he must reside there during the off-season so that his cottage is not converted to a year round residence, contrary to the purpose of the Bylaws.
In 1998, members were also granted blanket consent by a resolution of the Board (“Board Consent”) to use their seasonal recreational properties during the off-season only on weekends, statutory holidays or other days chosen at a member’s discretion, all not to exceed a total of 60 days during the off-season, unless some greater number of days has been approved by the Board upon prior written request. At the same time, the Club began an annual Winter Residency Survey to collect a member’s off-season residence municipal address and mailing address (if different) to publish in the Census and monitor compliance with By-law 15, Article 9 as to whether a member was actually residing at another residence during the off-season.
The 60-day criterion is not a by-law or rule. If use of their seasonal recreational cottages does not exceed a total of 60 days during the off-season, this blanket approval Board Consent means members subject to Restrictive Covenants on their Lot or pre-1997 Seasonal Residency Undertakings have temporary one-year relief from the one covenant therein in which they promised they would use their cottages only on occasional weekends and statutory holidays during the off-season [Restrictive Covenant Section 3(a), see (A)(2) above]. Since it would be equivalent to repealing a By-law (which requires 75% member approval), Board Consent cannot grant blanket relief from:
- prohibition on use as a permanent or year-round residence (interpreted to include domicile, primary residence, full-time residence or only residence) [Restrictive Covenant Section 3(b), see (A)(1) above];
- prohibition on use as a permanent or year-round residence or other than for recreational cottage purposes as provided for by the City of Burlington Official Plan [Restrictive Covenant Section 5, see (B) above]; or,
- prohibition on use as a primary residence [1997-2000 Undertakings].
Even with the Board Consent, to comply with By-law 15 Article 9, a member must reside at another residence during the off-season. However, By-law 15 Article 9 does not specify how many days a member must actually stay at another residence to constitute residing there and not at Cedar Springs. Instead, the By-law requires the Board to form an opinion as whether the member is actually residing at Cedar Springs or at another residence during the off-season. So even if a member maintains and stays at another residence, the Board has said a member must vacate his cottage for all but 60 days of the off-season or the Board may form an opinion under By-law 15 Article 9 that, contrary to the purpose of the Burlington Official Plan policy, conversion from summer seasonal recreational use to year round use has taken place nevertheless.
In its Board Consent resolution, the Board provided that if the Member restricts the use of their seasonal recreational property to 60 days (or less) in total during the off season, the Board will not form an opinion, for purposes of Article 9 of By-Law 15, that conversion of a seasonal residence dwelling to year round use has taken place. This statement does not tell the whole story about Article 9 of By-law 15. The By-laws cover the following uses: only residence, year-round residence and permanent residence. Since it would be equivalent to repealing a By-law, Board Consent cannot grant blanket relief from any By-law. The Board indicated its interpretation of only residence and conversion to year round use as explained in the paragraph above. However, the By-laws also prohibits conversion from seasonal residential use to a permanent residence. If a member was found to have converted their cottage to a permanent residence, the Board is still able to form that opinion for purposes of discipling a member under Article 9 of By-Law 15.
In August 2002, the members amended Rule #4 Cottage Rental to say: Seasonal residences, as defined under the Club’s by-laws, shall not be rented during the off-season (November 1st to May 1st of the following year) and shall not be granted rent-free use in excess of six days during the off-season. (i.e. a Member’s 60 days of off-season use privilege cannot be transferred to or used by another Member).
3. Prohibition on the conversion of seasonal dwellings into year-round homes for permanent residence.
Control of the conversion of summer cottages into year-round homes began at the request of the then Town of Burlington in 1959, when Club Board approval was required and certain conditions met before building permits were issued by the Town for such a conversion (i.e. for winter occupancy). In 1975 the City of Burlington prohibited further conversions when it passed the Official Plan amendment “The conversion of seasonal residential dwellings to permanent residences within the Cedar Springs Community shall not be permitted.” The City’s concern, confirmed in 1999, is the environmental impact from extended use of cottages and “that if the habitable area of the cottage were to be increased, that would lead to more frequent use of the cottage, either by the existing [owner] or some future owner.” Since 2000, Restrictive Covenants by cottage owners to comply with the Burlington Official Plan were signed and put on title to each cottage property each time it changed hands or other action on title was taken. In addition, every member has an obligation under the Third Schedule of the General Building Scheme (the “Flatt Agreement”) that the construction of any building shall be of a rustic nature in keeping with those already constructed (i.e a summer seasonal recreational dwelling). When renovating or rebuilding, Cedar Springs cottages do not have to comply with numerous sections of the Ontario Building Code.
Based on a survey of the membership in 1998, in 2002 the Club put in place design guidelines for construction that controlled the size and form of seasonal cottages. For example, new cottages were limited in general to the footprint of the old cottage, to a height to make it appear as a single story from the road view and to a size in keeping with neighbouring cottages. The objective was to conserve the stock of small seasonal recreational dwellings and not permit them to be replaced by large homes capable of being used as a permanent residence, contrary to the Burlington Official Plan.
4. So is Everyone Subject to the Same Rules?
Not every cottage owner is subject to the same rules. The Burlington Official Plan, the Flatt Agreement and the Club By-laws and Rules apply to everyone. But cottage owners are also subject to a wide variety of seasonal residency contracts (undertakings and restrictive covenants) individually signed by them over the years since the 1960’s. As time went by, those contracts became more comprehensive, gradually plugging loopholes and abuses of the seasonal residency restrictions and have now been in their current form for more than a decade. So the enforcement of those contracts could result in different outcomes for those members whose last change in ownership title took place prior to the last decade. In addition, many cottage owners are subject to written undertakings to government authorities and to conditions on development permits to maintain seasonal use in compliance with the Burlington Official Plan policy. The Board Consent resolution provides no interpretation of and no relief from those obligations. A cottage owner with a NEC development permit with the condition that the cottage remain seasonal cannot convert to permanent residence use without violating that condition. The legal result is the same as if the development had been done without a permit. Consequences include fines and removal of the development.
Compliance with and enforcement by the Club of the Restrictive Covenants and Undertakings on title since 1997 is as follows:
1. The Board must pass the 60 day Board Consent resolution annually to be legally effective. There can be no assurance that the Board will do this in future and so use during the off-season may be limited to weekends and holidays.
2. The Winter Survey is a contract that must be entered into annually for the cottage owner to obtain the annual resolution's 60 day relief from the restriction to limit use to weekends and holidays. The Club does not ask in the annual Winter Survey for the municipal address of a cottage owner's permanent residence (if it is different from the off-season residence address provided) but it does ask to confirm that a Cedar Springs cottage is not being used as a permanent or year-round residence as interpreted in the Restrictive Covenants to include domicile, primary residence, full-time residence or only residence.
3. If the Winter Survey is not completed satisfactorily, then the Board must do its own due diligence to determine whether or not the cottage owner has made his cottage a permanent residence or otherwise not complied with seasonal residency restrictions. Such due diligence would include determining whether the owner maintains another available year-round residence address in Canada or is demonstrably a permanent resident of another country.
4. In the absence of successful due diligence, the Board will then be obligated to protect the seasonal nature of Cedar Springs by taking additional enforcement action to preserve the legal enforceability of the restrictive covenants and undertakings on title.
5. Such action would commence with letters from the Club's legal counsel and would culminate with an application to the Courts seeking a court order for the cottage owner to demonstrate to a judge compliance with the restrictive covenants or undertaking on title to his property. For example, a judge could request a certified copy of a completed Page 4 of the cottage owner's Canadian passport. Breach of a court order by a cottage owner would be in contempt of court, a most serious offence.
6. Failure to take the above enforcement actions would be a breach of the Board's legal obligations and would subject individual Board members to personal legal liability, in breach of new statutory duties under the new Not-for Profit Corporations Act to be in effect July 1st, 2013. Under the new legislation, the Board is legally obligated to act with or without any resolution by members at a general meeting of members (e.g. a resolution to declare a member not in good standing is no longer necessary).
Compliance with and enforcement by the Club of Seasonal Residency By-laws has the following considerations:
The Burlington Official Plan and the Club By-laws apply to everyone. Without legally enforceable seasonal residency by-laws, we will lose the seasonal nature of Cedar Springs.
In the mid-1990's, another seasonal cottage community called Indian Park Association had its seasonal residency by-laws struck down by the Ontario Court of Appeal. The three judges determined that a cottage community club has no legal authority to take away private property rights by passing by-laws to restrict the use of member cottage owners’ private properties. The result for Indian Park was that the vast majority of its community converted from seasonal to permanent residences and the Association is now in the process of dissolving and donating its 80 acres of common lands to the local municipality.
Using the Indian Park case precedent, Warren McCrea tried to get Cedar Springs seasonal residency by-laws struck down at the Ontario Court of Appeal. In our case, with two of three of the same judges, it was confirmed that the Indian Park reasoning applied to Cedar Springs as well, in that there is no legal authority for the Club to amend by-laws, replace by-laws or pass new by-laws to restrict cottage lots to seasonal use. However, the Court upheld our existing seasonal residency by-laws on the basis that the Club was simply enforcing by arrangement with the City of Burlington seasonal residency use restrictions already established by municipal authorities. In short, government authorities may restrict the use of private property without consent, but members of a cottage community club may not.
So to keep the only seasonal residency by-laws we may have, our interpretation and enforcement must meet the test of the Ontario Court of Appeal and remain “in compliance with the Official Plan and the agreement with the Town of Burlington”. This means our seasonal residency by-laws are limited to the Official Plan scope, purpose and meaning of the words in the Official Plan. Changing or enforcing our by-laws to be more, less or different from the Official Plan is beyond the Club's legal authority and will cause our seasonal residency by-laws to be struck down (i.e. become legally unenforceable).
The Burlington Official Plan says the following is permitted: “the operation of a private, self-sustaining development with a maximum of 12 year-round residences and 82 seasonal cottages at the Cedar Springs Community located on Cedar Springs Road. The conversion of seasonal residential dwellings to permanent residences within the Cedar Springs Community shall not be permitted;”. Under our arrangement with the City to enforce this, our seasonal residency by-laws designate the 12 permanent residence lots and recite this intent.
Even if a seasonal cottage owner has a residence elsewhere, the Board has resolved that an owner’s cottage must be vacated for all but 60 days during the off-season, November 1st to May 1st. Otherwise, the Board may form an opinion under the by-law that conversion from summer seasonal recreational use to year round use has taken place nevertheless, a conversion contrary to the purpose of the by-law. Our problem is that some members have come to believe that staying away all but 60 days during the off-season means that they may now convert their Cedar Springs cottage into their permanent residence, which is also contrary to a clearly-stated purpose of the by-law. If the Club tries to enforce just one aspect of the by-law while agreeing to the breach of a purpose of the by-law (i.e conversion to a permanent residence), we lose the benefit of the McCrea case and the seasonal residency by-laws are struck down.
To keep this from happening and losing the seasonal nature of Cedar Springs, the Board received a written legal opinion from the Club's lawyer that their enforcement efforts required the following (among other things) to be added to the annual Winter Survey for 2011-12:
“By signing this Winter Survey the Member: (i) confirms that his/her/their seasonal recreational cottage will not be used as a permanent residence, year round residence, full time residence or only residence"
That declaration was dropped from the annual Winter Survey for 2012-13 and thereafter.
5. Can the Residency Rules Be Changed?
To answer this question requires an understanding of the desired change. Some have advocated that anyone should be allowed to make Cedar Springs their permanent residence and not have to reside in another residence during the off-season so long as they are not in Cedar Springs for a minimum of four months during the winter. That is, being at Cedar Springs a maximum of 60 days during the off-season should be implemented as the rule and the only residency rule.
There are two distinct sets of residency rules: those established by government authority; and those that were consented to by a private property owner of a cottage lot.
The government policy is the Burlington Official Plan which prohibits the further conversion of seasonal residential dwellings to permanent residences. The Club agreed with the City of Burlington to implement this policy by passing: By-law 13 “By-law re the designation of permanent residences” to designate all member-owned lots except for the 12 specified lots as seasonal residences; and By-law 15 Article 9 to declare a cottage owner a member not in good standing if they permitted their cottage to be used as an only residence during the off-season. By-law 13 tacitly necessitates a seasonal lot owner to have a permanent residence outside Cedar Springs and By-law 15 Article 9 requires a member to actually reside at another residence during the off-season.
The residency rules that were consented to by a cottage lot owner include undertakings signed as consideration for granting membership and the Restrictive Covenants signed by a cottage lot owner and registered on title to their cottage lot.
The Official Plan policy and the Club's arrangement with the City to implement it give the Club the legal authority to have By-law 13 and By-law 15, Article 9. In 1999, the Court of Appeal confirmed that the Club could pass these land use restriction by-laws under its Letters Patent pursuant to implementing an arrangement with the City of Burlington and declared our By-law 13 and By-law 15 Article 9 valid on that basis. The Club has found no other legal authority to pass or amend a By-law to impose any new seasonal land use restrictions on cottage lots and expect them to be legally enforceable under property law. The bottom line is that the Club cannot change its residency bylaws without agreement from the City. The City cannot agree to the changes some have proposed without amendment to the Burlington Official Plan. Just as the original 12 were exempted from the new policy put in the 1975 Burlington OP amendment, some additional number of lots could be exempted or grandparented from certain new rules some might propose for a new OP amendment. Even then, it is uncertain under property law as to whether all proposed changes could be enforced on all existing cottage owners, particularly those members who have not consented and vote against a by-law amendment.
With respect to residency rules consented to by a private property owner of a cottage lot, there are two ways that the Club could implement change. Under property law, the Club requires an owner’s consent to give up their private property rights. For example, owners have given consent under the Flatt Agreement and the Restrictive Covenants for certain land use restrictions on cottage lots. So one way to change residency restrictions is an amendment to the Flatt Agreement with 100% approval in writing by all property owners (notice of this amendment would need to be added to new Restrictive Covenants over time prior to each cottage sale). The second way is consent now by every one of the 71 seasonal members to put new residency Restrictive Covenants on title of each of the cottage properties. Once the Club has either (a) the Flatt Agreement amendment or (b) 100% of the 71 seasonal cottage owners with new Restrictive Covenants, the members at a meeting would then with a 75% vote repeal the residency By-laws subject to the City agreeing to repeal the applicable sections of the Burlington Official Plan. The Club would then negotiate with the City a repeal or replacement of the current OP section with something else that does not conflict so that the Club is not subject to the City’s (or other agencies’) enforcement of the existing Burlington OP by other means. A general Niagara Escarpment Commission Development Control permit would also be required for the conversion of seasonal use dwellings to permanent use, a process that could trigger requests for various professional environmental studies. See Dakin Report in Residency.
If the Club were to repeal the residency By-laws before achieving the applicable 100% owner approval, it would leave no seasonal land use restrictions on those cottage owners who have not consented, thereby adding those lots to the group of 12 properties without seasonal restrictions enforceable by the Club.
6. Links
Click to the History section of this website that sets out a full history of the development of the Residency Restrictions.
Click to the Winter Survey page for a PDF of the Winter Survey for seasonal residents.