Property managers and condominium corporations should take noise complaints seriously or risk facing serious financial consequences. In a recent case, a condominium corporation that failed to enforce its rules prohibiting excessive noise was ordered to compensate an owner for the costs incurred to find alternative accommodation and was ordered to pay a significant costs award. The judge also criticized the property manager for not having taken the complaint seriously.
Ms. Dyke lived in a high rise condominium in Toronto. She quietly enjoyed the use of her unit from 1994 until 2007, when the owner in the unit above hers removed the wall-to-wall carpeting and replaced it with hardwood flooring. Following a complaint from Ms. Dyke, the corporation retained a sound transmission expert, who confirmed that there was more than average transmission of sound, and recommended that 65% of the floor space be covered with area rugs.
The problem seemed to go away until February 2010 when a new tenant moved into the unit above Ms. Dyke’s unit. Unfortunately for Ms. Dyke, this new tenant was a professional dancer who eventually turned the unit into a full-time professional dance studio. Ms. Dyke complained repeatedly to her new neighbour but to no avail. As things worsened, Ms. Dyke started to complain to the condominium corporation and to the property manager, and eventually called the police to report a nuisance.
The condominium corporation initially took no action and referred the matter to its next board meeting the following month. They also advised Ms. Dyke to stop complaining to the neighbour but rather to direct any communications to the property manager. She did just that and numerous reports were made of excessive noise, comparable to the constant banging of a hammer. She continued to complain to the property manager but no steps were taken by the corporation or the property manager to rectify the situation. In fact, they never even sent a letter to the noisy neighbour requesting that the noise cease. Eventually, Ms. Dyke put the corporation on notice that if they did not take some action to enforce the corporation’s own rules prohibiting such noise nuisance, she would hold them legally responsible.
Rather than address the situation, the corporation advised Ms. Dyke that they “had been unable to independently verify the intensity of the disturbing noise”, completely ignoring the numerous past complaints, the 2007 noise expert report, and the fact that the security guard apparently had identified the source of the noise. To make matters worse, it appears that the corporation then started a campaign of harassment against Ms. Dyke (including unfounded allegations that Ms. Dyke’s two dogs were disturbing neighbours), yet doing nothing to address the fact that the noisy neighbour was using her residential unit as a professional dance studio.
As things worsened, Ms. Dyke could not work or make proper use of her unit and started to suffer ill health effects from the noise and stress of having to live with the constant noise of a dance studio above her. Eventually, the noise and its detrimental health effects became such that Ms. Dyke had no choice but to move out of her condominium in December 2011.
Ms. Dyke turned to the courts to obtain an order enjoining the corporation to enforce its own rules against such noise nuisance. She brought an application under Section 135 of the Condominium Act, which creates an oppression remedy where conduct of a condominium corporation is oppressive or unfairly prejudicial or unfairly disregards the interests of the applicant. She also sought compensation for the financial losses she incurred when she was forced to move out and find alternative accommodations. (We have blogged in the past on oppression remedies available to owners).
The court concluded that the corporation acted in a way which unfairly disregarded the interests of Ms. Dyke when it failed to take the adequate steps to enforce its own rules against such noise nuisance. The harassment campaign against Ms. Dyke also added to the corporation’s unfairly prejudicial conduct.
The court ordered the condominium corporation to reimburse the expenses incurred by Ms. Dyke to find alternative accommodations, such as rent, hydro, utilities, furniture and movers. These expenses exceeded $40,000. The corporation was also ordered to pay nearly $20,000 in legal fees.
Unfortunately for the corporation, the matter does not end there. The judge deferred to another hearing the issue of whether further damages should be paid to Ms. Dyke to compensate her for her pain and suffering, mental anguish and distress, loss of income and loss of comfort and quiet enjoyment of her unit.
Because of the corporation’s failure to enforce the rules, all of the owners will be paying for these damages and costs as part of their common expenses. The unit owner and tenant of the unit where the noise originated appear to have escaped any financial consequences. Had the corporation properly enforced the rules, they may have been able to claim their enforcement costs from the owner of the unit from where the noise originated.
While some noise and disruption is to be expected when living in a high rises or in close quarters, condominium corporations have a duty to enforce their rules in a balanced way to ensure that all occupants can enjoy their respective units. Condominium corporations and property managers must take all reasonable steps to ensure that their rules are complied with. At the very least, in this case, they should have immediately notified the noisy tenant (and the owner of that unit) to take immediate steps to prevent noise from unreasonably disturbing the comfort or quiet enjoyment of the neighbours.
In my next post on this topic, I will give practical advice on how to best address noise complaints.
Many thanks to our Barbara Holmes for her review and input on this blog.
