In a recently reported case, MTCC No. 985 v. Cheney, a long-running dispute between the owners of a unit and the condominium corporation about cigar smoke infiltrating into the owners’ unit turned out to be an expensive venture for both parties.
After complaints by the unit owners about cigar smoke migrating into their unit from the unit immediately above, both parties hired consultants to investigate and advise on measures needed to remediate the problem. Although some remedial work was conducted by the corporation, the consultants hired by the parties were not able to reach a consensus about what work needed to be done to eliminate the smoke migration and to prevent it from occurring in the future.
In addition to this, there was also a dispute about the installation by the unit owners of two humidifiers which were recessed into the drywall of the unit’s master bedroom and laundry room. The corporation took the position that this installation constituted a breach of the corporation’s declaration, as it was done without the consent of the corporation’s board. Furthermore, the corporation’s consultant was of the opinion that the installation of the humidifiers created holes in the drywall that facilitated the migration of smoke into the unit. After refusing for more than a year to remove the humidifiers, the owners ultimately agreed to remove them.
The corporation claimed that making the drywall repairs to close the holes resulting from the installation of the humidifiers, together with the remedial work it had previously undertaken, would constitute a reasonable fix of the smoke migration problems, bearing in mind the age and design of the building and the Building Code requirements that were in place when the building was built. The corporation further argued that it had acted reasonably since it had relied on the report prepared by its consulting engineer and had carried out the remedial measures recommended by its consultant.
The owners claimed that the corporation was in breach of its obligations to repair under sections 89 and 90 of the Condominium Act. The owners’ consultant was of the opinion that the work proposed by the corporation was merely a “Band-Aid solution” and that all openings between the units (i.e. recessed lights, exhaust grilles, smoke detectors, sliding door tracks, picture hooks, etc. ) needed to be sealed to prevent any further smoke infiltration into the unit.
The Judge ultimately sided with the condominium corporation and concluded that the corporation was not in breach of its duty to repair as the recommendations of the owners’ consultant were unreasonable.
“Not only would it result in wholly disproportionate remedial work being required (if one measures the expense and disruption, on the one hand, against the likely outcomes), but would go well beyond what is reasonable and required having regard to the age and construction of the building. . . . The standard is one of reasonableness, not perfection.”
This reaffirms the concept noted in many court decisions that a condominium board of directors needs to balance the rights of individual owners against the rights of the entire condominium community as a whole.
Each party incurred costs of over $100,000. However, the Judge exercised his discretion and declined to make any costs awards, leaving each party to bear its own costs. The Judge noted that:
“This dispute between the parties has gone on far too long and has mushroomed out of all proportion to the issues involved.”
We are seeing a trend in the cases where judges are not awarding costs to either party in disputes that could have been settled in a quicker and less costly manner had the parties taken a more conciliatory and less adversarial approach in dealing with the issues in dispute.
