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!

Can Condo Boards Pass Rules Without a Vote of Owners?

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Last week we described the process for creating new condo by-laws. One of our astute readers asked: Is the process for passing rules the same as passing by-laws? Today, we tackle that question.

Before we dive into the process for passing rules, we should quickly answer another common question. What can rules be used for? Rules cover a variety of topics in condominiums, including parking on the property, garbage disposal, moving procedure (i.e. booking the elevator), use of the common elements and amenities (i.e. pools, greenspace), and noise, odours, and other nuisances.

Appropriate Subject-Matter

Prior to explaining the procedure to be used to create a new rule, it is important to discuss the appropriate content of condo rules. Each of the declaration, by-laws, and rules has subject-matters that are exclusive to that particular document. For rules, the board must make the rules to promote one of two purposes permitted by the Act:

  • promote the safety, security or welfare of the owners and of the property and assets (if any) of the condominium; or
  • prevent unreasonable interference with the use and enjoyment of the units, common elements, or the assets (if any), of the condominium.

The rules must also be about “the use of the units, the common elements or the assets, if any, of the corporation”. In addition, rules must be reasonable and consistent with the Condominium Act, 1998, and the declaration and by-laws. If the rule is inconsistent with the Act, the Act prevails and the rule is deemed amended accordingly.

Process

The process for making, amending, or repealing (removing) condo rules is the same. The process is described in section 58 of the Condominium Act, 1998. To summarize, the process is as follows:

  1. Board Approval: Board, by resolution at a properly constituted board meeting, creates the new rule (or amendment or repeal of an existing rule). The board can create the rule on its own or with the help of the manager or lawyer.
  2. Notice to Owners: The condominium must send notice to the owners about the rule. There is no prescribed form for the notice, but it must contain: a) a copy of the proposed rule; b) the proposed effective date of the rule (a date that is at least 30 days after notice); c) a statement explaining the owners have the right to requisition a meeting and the rule becomes effective as described in subsections 58(7) and (8) of the Act; and d) copies of sections 46 and 58 of the Act.
  3. No Requisition Received: If the board does not receive a requisition within 30 days of the notice, the rule becomes effective the day after the 30th day (or a later date if the Board has proposed an effective date beyond the 31st day).
  4. Requisition Received: if the board receives a requisition within 30 days of the notice, the board must call a meeting of owners to permit them to vote on the proposed rule. The ordinary process for calling a meeting is used, except the preliminary notice is sent 15 days before the notice of meeting instead of 20 days like with the AGM. This still requires the board to move quickly when a requisition is received as the preliminary notice must be sent out within 5 days of receiving the requisition to ensure proper notice is provided and the meeting is held within 35 days as required by the Act (note: many condominiums are not able to meet the 35 days, so it is common for requisition meetings to be a few days late). The rule becomes effective if there is no quorum at the first attempt to hold the meeting or, if there is quorum, the owners do not vote against the rule at the meeting.

Special Situations

Rules proposed by the declarant before the registration of the declaration must be reasonable and consistent with the Act and the proposed declaration and by-laws. The proposed rules are effective until replaced or confirmed by later rules.

Where a rule has “substantially the same purpose or effect” as a rule that the owners previously amended or repealed within the last 2 years the Board must call a meeting of owners to vote on the proposed rule. The owners do not need to requisition a meeting to vote on a rule that is substantially similar to one they already amended or repealed.

Lastly, and perhaps the most controversial, subsection 58(5) of the Act states that “the owners may amend or repeal a rule at a meeting of owners duly called for that purpose.” Some interpret this as suggesting the owners have the right to requisition a meeting to amend or repeal an existing rule (not create a new rule) without the board first approving the change as the board would in most cases where they are proposing a change to the rules. I support this interpretation. It provides the owners with the right to requisition a meeting to change a rule that no longer fits the community.

Have any other suggestions for future blog posts? Feel free to share by emailing us, or commenting on our social media posts.

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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Top Condo Lessons of 2019

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As 2020 approaches I find myself reflecting on the most important news, cases, and events from this past year. There were several notable decisions released this year and a few that I’m sure we would all like to forget! The hardest part of these lists is selecting only ten to speak about. Here is my list of the top ten condo lessons for 2019:

Counting Isn’t as Easy as 1, 2, 3

The Court confirmed the 10 day notice requirement for liens can be calculated by excluding the date the notice of lien is mailed and including the date of registration. Sending the notice of lien on January 21 and registering the lien on January 31 was acceptable. (Note: this is the minimum; more time is generally better). See CCC 476 v. Wong (2019). Continue reading