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!

10 Condo Law Highlights of 2020

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2020 has been an eventful year, to say the least. With everything else going on in the world, who has time to stay on top of changes in condominium law? We do! And so to help you out, we’ve prepared a list of 10 changes and decisions in condominium law in 2020 that you won’t want to miss.

  1. The Condominium Authority Tribunal (the “Tribunal”) expanded its authority

Starting on October 1, 2020, the Tribunal’s jurisdiction expanded to include hearing disputes based on provisions in a condominium’s declaration, by-laws, or rules regarding: (a) pets, (b) vehicles, (c) parking/storage, and (d) indemnification/compensation related to the disputes in (a)-(c). This means that disputes in these categories can now be heard using the Tribunal’s streamlined dispute resolution process instead of going to court.

  1. The new Condo Guide for pre-construction and newly-built residential condo purchasers

The Condominium Authority of Ontario released a new Condominium Guide which, starting January 1, 2021, must be delivered to all potential purchasers of pre-construction and newly-built residential condominium units. The Guide will give these purchasers more information on condominium construction and condominium living. For more information on the Condominium Guide, see our previous post here: https://rcllp.ca/condo/?p=499

  1. “Adequate” condo records need not be perfect

Condominiums are required to keep adequate records. The Tribunal confirmed that “adequate” means the records must allow the condominium to fulfill its duties under the Condominium Act, 1998 (the “Act”). To do so, “adequate” records must be accurate but need not be perfect. The level of accuracy required for a record to be “adequate” may vary depending on the record in question. For example, minutes of board meetings are held to a high standard because they look back on facts which should be certain and known, and they serve the important purpose of making the board’s affairs open to the owners. Read the full case here: https://www.canlii.org/en/on/oncat/doc/2020/2020oncat33/2020oncat33.html?resultIndex=1

  1. A condominium cannot impose conditions before releasing records to owners

The Tribunal determined that a condominium cannot impose conditions before providing requested records to an owner. If the records are properly requested by the owner, the condominium must either provide them or refuse to provide them (with a reasonable excuse for the refusal). By imposing conditions, the condominium effectively refused to provide the records. Read the full case here: https://www.canlii.org/en/on/oncat/doc/2020/2020oncat2/2020oncat2.html?resultIndex=1

  1. Comply with Tribunal orders or face cost consequences in court

The Tribunal ordered the condominium to provide records to the owner within 30 days. The condominium did not comply, so the owner took the matter to court. The condominium provided the records to the owner before the court hearing date, yet because the condo had still breached the Tribunal’s order, the court ordered the condominium to pay the owner’s legal fees and disbursements totalling $14,716.91. This serves as a reminder that timelines in Tribunal orders must be complied with, and that Tribunal orders may be enforced in court. Read the full case here: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc189/2020onsc189.html?resultIndex=1

  1. Condominium directors not held personally liable for board decisions

A declarant claimed that the condominium’s directors acted oppressively toward the declarant. The court determined that the claims could not succeed against the directors personally. The directors’ decisions in question were decisions relating to day-to-day activities of the condominium without personal gain, and therefore even if the directors made the wrong decisions, this did not justify a personal order against them. Read the full case here: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc6445/2020onsc6445.html?resultIndex=1

  1. Significant cost consequences of acting unreasonably  

After succeeding in a case against his condominium, an owner sought a court order for the condominium to cover the costs he had incurred. The court ordered the condominium to pay $83,340 in costs to the owner. The court granted this unusually high costs award because the owner had acted reasonably throughout the matter whereas the condominium was unreasonable and aggressive. Let this serve as a reminder and a warning that unreasonable, aggressive behaviour from a condominium may have significant cost implications. [Note: the decision was unsuccessfully appealed by the condominium, resulting in another $30,000 costs order payable to the owner]. Read the full case here: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1190/2020onsc1190.html?resultIndex=1

  1. The Act will be interpreted to protect owners

A third party claimed that a condominium’s action against it was a nullity because the condominium did not properly notify the owners of the action under section 23 of the Act. The court held that it would be inconsistent with the Act, which is designed to protect owners, to render an action a nullity where doing so would actually be detrimental to the owners. The condo commenced this action for the benefit of the owners and therefore it was allowed to proceed despite not providing proper notice to the owners. Read the full case here: https://www.canlii.org/en/on/onca/doc/2020/2020onca63/2020onca63.html?searchUrlHash=AAAAAAAAAAEADVNPIDE5OTgsIGMgMTkAAAABAA4vNjY1LWN1cnJlbnQtMQE&resultIndex=3

  1. Tenant’s excessive noise was a breach of the condominium rules

A tenant in a high-rise condominium repeatedly made excessive noise. The neighbouring tenant repeatedly made noise complaints to property management. The condominium took steps to get the noisy tenant to stop, and when those failed, the condominium filed a court application to enforce compliance with the Act and the condominium’s rules. The condominium succeeded. Not only was the tenant ordered to comply with the Act and the rules, she also had to pay condominium’s costs of $23,250. Read the case and costs decision here: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc196/2020onsc196.html and https://www.canlii.org/en/on/onsc/doc/2020/2020onsc3853/2020onsc3853.html?searchUrlHash=AAAAAAAAAAEADVNPIDE5OTgsIGMgMTkAAAABAA4vNjY1LWN1cnJlbnQtMQE&resultIndex=5

  1. Another noise complaint

In the case above, the condominium and the neighbouring tenant worked together to deal with the loud tenant. In contrast, this is a case initiated by an owner against her condominium for failing to take sufficient action to deal with her noisy neighbour. The court determined that the condo could have done more but still acted reasonably, so the claim was dismissed. Noise can be a serious issue in condos, and condos should balance the competing interests of the parties when dealing with these disputes. Read the full case here: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1262/2020onsc1262.html?searchUrlHash=AAAAAAAAAAEADVNPIDE5OTgsIGMgMTkAAAABAA4vNjY1LWN1cnJlbnQtMQE&resultIndex=6

Can a Condo Prohibit Talking on a Balcony after 11 pm?

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An owner complains about noise from her neighbour’s balcony late at night and asks the condominium to prohibit the neighbour from talking on the balcony after 11 p.m. The condominium does not have a rule prohibiting residents from talking on their balconies at night, but has a rule prohibiting noise that disturbs the other residents.

With more of us staying at home these days this is bound to be a common problem, especially once the warmer weather comes. What should the condominium do when faced with these sorts of complaints? Should the condominium send demand letters to the neighbour? Start a court application? Should the condominium pass a rule prohibiting these late night discussions on the balconies? Fortunately, a recently reported case gives us some guidance.

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Canada Day Celebrations!

canada day.jpgI love this time of year. AGM season is almost over. It is hot and sunny; perfect weather for golfing, relaxing by the pool, or going to the beach. And Canada Day is just around the corner! With the 150-year celebrations planned across the country this year’s festivities should be spectacular. More flags. More fireworks. More friends. More family. More celebratory drinks. However you like to celebrate, this year should be a memorable one!

Unfortunately, large celebrations often mean more condo disputes. “My neighbour’s flag blocks my sunlight”. One of the tenants lights fireworks off his 12th-floor balcony. And of course, one of the most common complaints regardless of the time of year, noise and loud parties. No one wants to stop people from having fun, but it can be difficult for a board to balance the competing interests in a condo setting. Here are some suggestions to make this year’s festivities fabulous.

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Condo Children

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What do you think about raising children in condominiums? It seems everyone has an opinion about it. Most write about the perceived cons of condo living, like having no backyard. Recently, I’ve read several articles (like this one and this one) that focused on the positives of condo living for children, like amazing amenities (i.e. pools, games rooms), unique opportunities (i.e. cooking classes, swimming lessons), and large, supportive communities.

While condo living can provide great opportunities for children and families, it can also create a host of problems for condo boards and managers. Noise complaints. Children running around at all hours. Pressing all of the elevator buttons. Some children are little tornados left free to cause destruction and chaos. With a little effort by everyone, condos can be a great place to raise children.

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Top Condo Lessons of 2015

As 2016 approaches I find myself reflecting on the most important news, cases, and other events from this past year. Here is my list of the most important condo lessons for 2015:

10. Limitation Periods. The limitation period for enforcing a shared facilities agreement in Ontario appears to be 10 years: Toronto Standard C.C. No. 1487 v. Market Lofts Inc. The limitation period for challenging a special assessment is 2 years and the period begins when the special assessment is levied, not when it is due:  Vasilescu et al. v. Metropolitan Toronto C.C. No. 626.

9.  Noise Issues. An owner does not have a right to absolute quiet in their unit; the other owners are entitled to make ordinary residential use of their units without fear of enforcement efforts by the condominium: Dyke v. Metropolitan Toronto C.C. No. 972. However, it can be oppressive for a condominium to ignore noise complaints, especially when its own experts indicate that there is a problem: Wu v. Peel C.C. No. 245.

8.  Scheduling Meetings. Condominiums ought to be mindful of religious holidays or special events when selecting dates or times for owners’ meetings: Kamal v. Peel C.C. No. 51 (no decision released yet).

7.  Directors’s duties. A director may be found to have breached their duties when he/she publicly opposes a decision made by the board in a way that is not in the best interests of the condominium: Ballingall et al. v. Carleton Condominium Corporation No. 111.

6. Fraud. More property mangers were charged with fraud this year. Condominiums in Hamilton and Burlington were hit hardest. All directors and owners should be diligent when reviewing financial records of the condominium; hire only trustworthy managers; and ask the auditor and bank reps for tips to avoid fraud.

5. Bed bugs are dangerous condition. An owner who fails to address a bed bug infestation (or hoarding) can be found to have breached their duties under the Act and declaration and the owner may be responsible for all of the condominium’s costs: Carleton C.C. No. 25 v. Eagan.

4.  Grandfathering. A clause in a new rule may grandfather existing violations, but it must be reasonable (10 years was not in this case) and consistent with the declaration: Ballingall et al. v. Carleton Condominium Corporation No. 111.

3.  Disabilities must be proven. An owner cannot make a bare assertion of pain or anxiety to substantiate a disability claim and a request for accommodation; the condominium is entitled to request evidence of the disability, a description of the needs of the disability, and an explanation of how the requested accommodation meets those needs: Simcoe C.C. No. 89 v. Dominelli.

2.  Court Costs. The courts continued to express concern for claims by condominiums trying to recover excessive legal costs from owners for enforcement matters. See here and here. But Owners should be careful not to make claims that they can’t substantiate or they may be responsible for the large legal bills of their condominium.

And not surprisingly, the top news event of 2015 is…

1.   The passage of the Protecting Condominium Owners Act, 2015 (Bill 106). In April the Ontario government confirmed that the Condominium Act, 1998 would be amended in 2015. In May the proposed amendments to the Act were revealed. In December the Bill received royal assent. It is not yet in force as the government needs time to create the regulations and organizational structure (i.e. tribunal), but many estimates say it will be in force later in 2016 or early 2017.

Condo oppressed owner when it failed to address noise

You have probably all read about the oppression remedy in section 135 of the Act. As a recap, section 135 allows an owner, corporation, declarant or mortgagee of a unit to make an application to the courts where the conduct of another owner, corporation, declarant or mortgagee of a unit “is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant.” The purpose of the oppression remedy is to protect legitimate expectations from conduct that is unlawful or, even if lawful, is considered unfair or oppressive. The legitimate expectations must be balanced against competing interests, such as the board’s duty to make decisions on repair or maintenance. The section has been described as “awesome” because it gives the judge the power to make any order he or she deems proper.

Although oppression has been claimed many times since section 135’s inclusion in the Act, very few of the applicants have been successful. Successful cases involve a declarant that refuses to relinquish control of the condominium or where a decision is made that is unfair to a minority group of owners. However, this week a decision was released where an owner was successful against the condominium not because of a decision made or an action taken, but because of the condominium’s inadequate response to the owner’s complaints.

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Noisy Neighbour or Overwhelmed Owner?

The Court has had another opportunity to rule in the never-ending saga of Dyke v. Metropolitan Toronto Condominium Corporation No. 972The owner brought a motion for contempt and other relief. The main question on the contempt motion was whether the condominium and its board of directors or agents disregarded, intentionally violated, or otherwise flouted the previous court order that required the condominium to take reasonable steps to ensure that the owner would have quiet enjoyment of her unit.

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