A 'family' house with 12 bedrooms? Why policing rentals is difficult

The city is up against some major challenges as it tries to enforce its bylaws and keep tenants safe in houses like the one in Ainslie Wood with 12 bedrooms.

The biggest one is out of its control.  

Provincial human rights law prevents cities from discriminating about what a "family" is in its zoning, creating a significant loophole for large numbers of students or others to live in a "single-family dwelling" as opposed to a "lodging house."

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Coun. Aidan Johnson, who represents the ward that includes McMaster University, is an attorney by training and is typically among the loudest promoters of city compliance with human rights rulings.

We're waiting for some really tragic circumstance to happen where a dozen people are going to die in a fire because they were trapped.- Michael Mercier,  assistant professor  at McMaster

But he said he thinks the Human Rights Tribunal of Ontario has been misguided in saying cities can't define what a family is for zoning purposes.

Lodging homes require more stringent health and safety requirements and regular inspections by the fire department, unlike single family homes. 

But the provincial ruling means that a group of students can be considered a "family" depending on the way that they work out their lease details and living arrangements with their landlord.

And under that interpretation, people are living in units that are not getting the appropriate safety inspections.

"Neighbours ask all the time, well, why are there so many students in this house?" Johnson said. "And the answer is because the Human Rights Tribunal has held that you cannot define what a family is for purposes of zoning, in the context of student housing."

"That's a rule that I disagree with," Johnson said. "If a house is a lodging home in every significant sense of the term 'lodging home,' then I do not see a human rights violation in the act of treating it as a lodging home."

Could landlord licencing help? 

But there are some things the city has control over. 

Now, two city councillors representing wards with large student tenant populations plan to propose a mandatory landlord licencing pilot project for their wards.

To do so could flip the city's reactive, instead of proactive, form of enforcement.

Conversations about a citywide rental licencing program have been circular and lost steam since they began in 2013. The most recent compromise was to enact a voluntary registry for landlords, which one councillor called "window dressing."

But Johnson and Ward 8 Coun. Terry Whitehead want to pilot a project in their wards, which are home to many student rentals.

"It isn't the case that there's lots of money in the city treasury for us to tap into in order to create the kind of proactive bylaw enforcement that we need," Johnson said.

"So licencing is an effort to get at bad landlords and improve living conditions for low-income tenants, student and non-student."

'The officer would not have gone back'

A CBC News investigation Thursday into a 12-bedroom house in Ainslie Wood revealed limits in the city's reactive-only enforcement approach that leave tenants vulnerable.

It's zoned as a single-family home. But it has 12 bedrooms.

Even though the city knows that —thanks to a 2016 complaint — there is no active enforcement underway. 

The file on a 2016 zoning infraction was closed after inspectors showed up in July, a time when all the students had gone home, and found no one living there.

The house wasn't flagged for follow-up and the inspectors didn't tell the fire department about the home.

The city hasn't gone back since new owners took over and began renting out the bedrooms again.

"The officer would not have gone back after the file was closed unless we continued to get complaints," said the city's bylaw spokeswoman, Ann Lamanes. "Due to the volume of complaints, our enforcement in this area is reactive, not proactive."

The home's new owner said he tries to rent to two "groups" of three to four students each for the home, which may be in efforts to fit his house into those "single tenancy" rules. But even that approach could result in a zoning violation, bylaw told CBC News.

The stakes are high: A fire killed three people last summer in a Hamilton house that would have been subject to yearly fire inspections if it had been zoned properly and licensed as a lodging home.

Michael Mercier, an assistant professor of human geography at McMaster, said the city needs a rental registry. 

"We're waiting for some really tragic circumstance to happen where a dozen people are going to die in a fire because they were trapped," he said. 

"Maybe that's where the obligation falls on the shoulders of all of us as a society, to ensure that nobody lives in conditions that are unsafe."

The new landlord of the 12 bedroom home says he is providing a necessary service to address the student housing needs around the university.

12 bedrooms? 'That's small' says neighbourhood advocate

Ira Rosen is president of the Ainslie Wood/Westdale Community Association.

12 bedrooms? That's nothing, he said.

"That's small," he said. "I've heard of 16 and 21."

He agrees the city needs more teeth for its bylaw enforcement. 

"The way the bylaws are written, (officers) can't get access without permission; they only follow up if they get a complaint, even if they do gain access they don't do anything and two weeks later the guy changes it all back and they don't follow up because they don't have the resources," Rosen said.

That's why Johnson and Coun. Terry Whitehead, who represents the neighbourhoods of Ward 8 near Mohawk College, are teaming up to propose the landlord licencing pilot.

Profits from licencing fees would have to be spent on bylaw enforcement, so the move would give the city some money to go after bad landlords.

It's not likely a slam-dunk. Some anti-poverty advocates dislike the idea of rental licencing, because it serves to lower the number of units available for tenants. 

And landlords are likely to pass on the fees to the tenants. 

"Those people who are living in units that are most likely to fail inspection are the ones who are least likely to be able to afford the increase that comes from having more inspections," Mercier said.

But Johnson said he sees a "moral case" for the move.

"It's unacceptable to leave our low-income tenants in squalid, unhygienic fire hazard laden apartments and rooms," he said.

kelly.bennett@cbc.ca