BCAB #1621 - Definition of Dwelling Unit, Sentence 184.108.40.206.(1)
April 20, 2006
Re: Definition of Dwelling Unit, Sentence 220.127.116.11.(1)
The project is a multi building residential complex. Each building is three storeys in building height and incorporates 4 or 5 side by side residential suites. Each individual suite is multi level, being three storeys in building height.
Each residential suite is owned by between one and four separate owners, and each owner has the option of renting their particular possession period to the public. The local government land use bylaw prohibits an occupant from staying more than 30 days in each stay.
Reason for Appeal
Sentence 18.104.22.168.(1) defines a dwelling unit as a suite operated as a housekeeping unit, used or intended to be used as a domicile by one or more persons and usually containing cooking, eating, living, sleeping and sanitary facilities.
Article 9.9.9. provides requirements for egress from dwelling units. Other Code requirements such as Sentence 22.214.171.124.(1) (required exits from each floor level), Table 126.96.36.199. (fire resistance rating for floor assemblies), Sentence 188.8.131.52.(1) (floor assemblies constructed as fire separations) have specific exemptions or requirements for dwelling units.
The appellant considers the requirement that a dwelling unit is the usual or permanent residence of the occupant to be an inappropriate condition for Building Code purposes.
Building Official's Position
The Building Official contends that the individual residential suites cannot be considered as dwelling units and those Code requirements specifically applicable to dwelling units cannot be used for this project. The justification for this position is within the definition, the suite is to be “used or intended to be used as a domicile.” A dictionary definition of domicile suggests a domicile is permanent residency of the occupant.
Appeal Board Decision #1621
The definition of dwelling unit includes “… used or intended to be used as a domicile…” The term domicile is not defined in the Code, therefore the Board has considered a legal decision (3252 Holdings Ltd. v. Sunshine Coast) that concluded “…the word domicile must relate to the fixed and permanent home of a person and cannot relate to a dwelling that a person occupies only on a temporary basis where it is clear that the person always intends to return to their permanent home.” On this basis, it is the determination of the Board that the subject units within this residential development do not meet the Code’s definition of dwelling unit.
Further, the Board recognizes the present Code differentiation between dwelling units and other types of residential accommodation may no longer be appropriate for present day building uses and types of tenure. The Board is referring this matter to the Minister responsible for Provincial building regulations to consider immediate action to address this matter.
George Humphrey, Chair