New to the Condominium Way of Life: Part 4

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Our fourth Q-and-A style blog post has arrived. This time we discuss how you can navigate having a noisy neighbour, a neighbour that has complained about you being too noisy, how you can build a case for a complaint, and what you can do if you disagree with a ruling of a condominium.

Noise is one of the most common types of nuisances in condominiums, especially in residential condominiums constructed with shared walls, like apartments or townhouses. While owners have a right to use and enjoy their units, there is no absolute right to silence. Living in close quarters means that owners must expect some level of noise from their neighbours. The residents are entitled to make ordinary household noises without fear of complaints against them or enforcement steps being taken by their condominiums. The courts have suggested that in most cases ordinarily household noises will include the sound of people walking in the unit above, children playing, doors and cabinets closing, chairs moving away from tables, and vacuuming.   

Q. What can I do if another unit owner is being noisy and disturbing me?

A. Ask yourself the following questions: Is the source considered an ordinary household noise? Is the sound at a reasonable level? Is the noise occuring during the day?

If the answer to these questions is yes, there is likely not much the condominium can do to assist you as the other residents have the right to use their units. You could purchase noise reducing earplugs or a white noise machine to cover the noises. You could also speak with your neighbour to see if you can work out a solution, such as the owner agreeing not to vacuum at a certain time of day when you might be sleeping.

If the noise is unreasonably loud or very frequent, or occurring late at night, and your neighbour is not willing to reduce the noise or work with you to find a solution, you can reach out to the condominium for assistance. The condominium will likely ask for details about the noise, such as the date and time of occurrences and a description of the type of noise (i.e. loud music, banging or hammering). The condominium may also ask you to provide a recording from your phone or other device if the noise is the type that is easily recorded. This information will help the condominium investigate your complaint and address it with the other resident. In some cases, the condominium may have an acoustical engineer or other professional investigate the noise and provide a report of the sources.

You might have success calling by-law officers to report the noise. Keep in mind that the by-law officers will only ticket the other resident if they can hear noise that violates the municipal by-law at the time of their attendance. Often by the time the officers arrive the noise has subsided. Also, in some parts of the province by-law officers will not attend condominiums in response to noise complaints.

Q. What can I do if another unit owner has complained about me?

A. Consider if you are making too much noise in your unit and take steps to reduce the noise. Often installing area rugs or flooring with high quality underpad can work for a variety of noise issues. You can purchase inexpensive felt pads to reduce noise from banging cabinets, furniture moving across the floor, and closing doors. Keep noise from electronics, like televisions and computers, to a reasonable level or use a headset. Ask your kids to stop screaming or not jump off furniture, especially early in the morning when some people might still be sleeping. If you have people over for dinner or a party, remind them of the rules about noise and their obligation to keep the noise down. Whatever you do, do not ignore a letter from the condominium alleging any sort of rule violation, including excessive noise, as it could have significant consequences.

If you believe the owner complaining about you is unreasonable or there are special circumstances causing the noise, such as a renovation project, you can try speaking with them to see if there are certain noises or times of day that they find most irritating and work with them to find a solution. You can keep your own record of times when you are home and your activities to refute the complaints if you feel the other owner is making them up or exaggerating about the noise.  If you feel the noise is caused by another unit or from the common elements, such as the elevator, garbage chute, or HVAC equipment, ask the condominium to investigate to rule out deficiencies with these items.   

Q. What can I do if the condo has ruled against me in a complaint but I think the decision is unreasonable?

A. If you feel the condominium is not addressing noise from another unit that disturbs you, you could gather your own evidence to make a case for the condominium. For example, have witnesses give you statements of what they hear and feel when they visit your unit. You could hire an expert to provide a report of their findings. You could record the noise with your phone or other device. If the condominium still refuses to address the noise, you should speak with a lawyer about your options for requiring the other owners and the condominium to comply with the rules regarding noise.

If the condominium takes steps to enforce against you and you feel you are not causing excessive noise, you should speak with a lawyer about your options for defending yourself. For example, you might want to request mediation to try to resolve the matter without court as mediation tends to be much quicker and less costly than court.

Special thanks to Zach Powell, summer student at Robson Carpenter LLP, for asking the questions owners want to know and preparing this post!

Grandparenting Not Required for Rule to Be Reasonable

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A recent application (Wellington Condominium Corporation No. 31 v. Silberberg) before the Superior Court considered whether a condominium corporation’s newly enacted rule prohibiting smoking within the common elements of the condominium plan was unreasonable.

The Facts

The facts of the dispute are not complicated:

  • The owner of a unit (the “Owner”) had been smoking on the balcony adjacent to the Owner’s unit (the “Balcony”) since first occupying the unit in 2009;
  • There was no rule prohibiting such activity until, in response to complaints of smoke migration, the condominium corporation proposed a new rule that prohibited smoking within the common elements (including the exclusive use balconies) of the condominium plan;
  • The proposed rule did not prohibit smoking in the units of the condominium plan;
  • The condominium corporation held a meeting of owners after receiving an invalid request for same;
  • Some owners requested the Rule be amended so it would not be enforced against those occupants that smoked in the common elements prior to the rule coming into effect;
  • A majority of eligible owners voted not to amend the rule as proposed by the condominium corporation;
  • The rule came into effect June 21st, 2018 and read as follows:

Smoking of any kind, including without limitation by using vaporizers or e-cigarettes is not permitted in any part of the common elements or exclusive use balconies at any time.

(the “Rule”);

  • The Owner admittedly continued to smoke on the Balcony after June 21st, 2018 and believed the condominium corporation could not stop him from doing so;
  • The condominium corporation contacted the Owner demanding compliance with the Rule;
  • Counsel for the condominium corporation sent multiple letters to the Owner/Owner’s counsel demanding compliance with the Rule; and
  • The Owner continued to smoke on the Balcony.

 

The Application

The Court was asked to consider 3 issues:

  1. Is the Balcony unit or exclusive use common elements?
  2. Was the Rule properly passed?
  3. Is the Rule reasonable?

Is the Balcony unit or exclusive use common elements?

The Court was satisfied that the Balcony was an exclusive use common elements area of the condominium plan.

The Owner alleged the Balcony or a portion of the Balcony was owned exclusively by the Owner.  Other than the viva voce evidence of the Owner during cross examination, photos of the Balcony, and the Owner’s sketch of the Balcony depicting its dimensions, the Owner offered no evidence to support this assertion.

The Court preferred the wording found in the condominium corporation’s declaration that provides:

the Owner of each Unit shall have the exclusive use of that portion or portions of the Exclusive Use Common Elements as set out in Schedule “F” attached hereto.

Schedule F to the condominium corporation’s declaration provides:

The Owner of each Unit shall have the exclusive use of any balcony to which the Unit shall provide direct and sole access as shown on Parts 1, Sheets 2 and 3.

The Court found that “[a]bsent some modifying words in the [declaration] itself, balcony should be taken to mean the whole balcony”.  The Court went on to find that this interpretation was supported by the design of the Balcony and found no evidence to otherwise support the assertion that the Owner has exclusive ownership of part of the Balcony.

Was the Rule properly passed?

The Court found the Rule was properly passed.

As the Owners attended the meeting of owners by proxy, the Court was satisfied subsection 47(9) of the Condominium Act, 1998 prevented the Owner from objecting to a failure of the condominium corporation to give the required notice.  With respect to the meeting itself, the Court was satisfied that the uncontradicted minutes of the meeting of owners included in the condominium corporation’s application materials disclosed that a quorum of owners was present at the meeting of owners and that the Rule passed without amendment.

Is the Rule reasonable?

After recognizing the Court should only interfere with a rule properly enacted by a condominium corporation where such rule is clearly unreasonable, the Court was satisfied the condominium corporation had a reasonable basis for enacting the Rule.  The Court found that:

  1. given the current legislative environment, it was not unreasonable for the condominium corporation to impose further restrictions on smoking within the condominium plan;
  2. it was not unreasonable for the condominium corporation to regulate smoking in areas where fumes could affect other units;
  3. given the broader public context, the Rule was reasonable in and of itself;
  4. owners had an opportunity to discuss the proposed rule at a meeting of owners; and
  5. there had been complaints about smoke migration.

The Court then went on to consider whether the Rule was unreasonable for want of “grandparenting” occupants that smoked within the common elements prior to the Rule coming into effect.  The Court concluded that a period of grandparenting for the Rule was not necessary as such was not required by the Condominium Act, 1998.

The Court went on to note that the Owner was permitted to smoke within the Owner’s unit and that the Rule did not prohibit the Owner from smoking within the entire condominium plan.  Further, the Court as in Thunder Bay Condominium Corporation No. 15 v Ewen, found the Owner could walk off the condominium plan and smoke there.  The Court went on to state that including a grandparenting provision in the Rule would defeat the purpose of the Rule – to prevent smoke migration – and that the Rule does not contain any grandparenting provisions is neither unexpected nor unreasonable.

The Court concluded that the Rule was entirely reasonable and did not leave the Owners without options.

Takeaway

This decision illustrates that reasonableness is highly context dependent.  The decision clearly demonstrates that the Court will consider the broader legislative and public context in making a determination as to whether a rule is reasonable.

Although the Court concluded that a grandparenting provision was not required in this instance, it is essential to note that the circumstances surrounding the Rule appear to have had significant value to the Court in reaching its decision.  Further, the Court concluded that grandparenting in this context would defeat the purpose of the Rule.

It remains possible that a grandparenting provision could be required where:

  1. such a provision would not defeat the purpose of the rule; or
  2. the rule prohibits an activity in its entirety.

Further still, condominium corporations may wish to consider including a grandparenting provision for political purposes – to ensure a majority of eligible owners will vote in support of the proposed rule should the condominium corporation receive a requisition for a meeting of owners to vote on the rule.

What’s that Smell? Smoke and Odours in Condos

It seems that smoking and odour problems are on the rise these days in condominiums. The reason? Likely a combination of municipal planning departments approving more high density developments and our growing intolerance for smoking (cigarettes at least). The solution? It depends.

In a few rare cases, there may be smoking indoors on common areas, such as corridors or elevators. Smoking is illegal (see the Smoke Free Ontario Act) in any common area of a condominium, including elevators, hallways, garages, party rooms, laundry facilities, or exercise areas. Smoking is legal on the exterior common elements as long as they are not covered.

More often than not, the problem arises when a unit owner is smoking within a unit or on an exclusive-use common element, such as a balcony or patio, or where a unit owner has non-traditional cooking times or uses more fragrant ingredients. While such conduct may be legal, it may be prohibited by the condominium’s declaration or rules.

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