We all agree late-night parties are a pain, but consensus can be an issue with other concerns
Tony Gioventu
Province
Dear Condo Smarts: Our strata corporation is constantly dealing with complaints about noise, smoking, barbecue smoke and odours. All of these fall under the bylaw in the strata act that deals with items that are a nuisance. Smoking is the most obvious problem we frequently have to address. Our strata is an older building, so ventilation, indoor air quality and the passage of air and odours from unit to unit is a common occurrence. If we took all these items seriously, everyone in our strata would likely be in violation of the bylaws every month. We know some people are more sensitive, but with such an older building and living in a collective, there has to be some reasonable level of nuisance that everyone has to deal with. Where do we draw the line? Are there court cases or definitions that give us a better understanding?
Dvora and John North Vancouver
Dear Dvora and John: A number of terms used in the Strata Property Act and Standard Bylaws require the strata council to make an interpretation that is both reasonable and comparable to the circumstances of each community.
For example, there is a provision in the act where an owner may apply to the council for a hardship exemption from rental bylaws. Hardship itself is not defined and only the council may decide. The council could look to other definitions or examples, but ultimately it acts as the hearing body to gather information to make the decision. The duty to make the decision regarding a hardship exemption, bylaw enforcement, fines, penalties or special accommodations to the bylaws, cannot be delegated.
Nuisance can be interpreted quite broadly. Here are some of the interpretations the courts have issued in establishing a nuisance.
At common law, a “nuisance” is a condition on a property or use of a property that interferes with a neighbour’s ability to enjoy their property. For example, an industrial plant that otherwise operates lawfully may cause a nuisance if smoke or noise invades the right of enjoyment of neighbours to an unreasonable degree.
Elaine McCormack, a Vancouver lawyer whose expertise is in strata law, says: “The law of nuisance attempts to reconcile competing uses of land. It endeavours to balance the rights of one occupier of land to use his or her property for lawful purposes with another occupier’s right to the quiet use and enjoyment of his or her land. The court can intervene when the interference with the other’s use or enjoyment of land is unreasonable.”
If you look at the Standard Bylaws, these terms are almost identical. “Use of property … unreasonably interferes with the rights of other person to use and enjoy the common property, common assets or another strata lot.”
In a 1990 Supreme Court case in B.C. of Popoff v. Krafczky, the court approved the objective test as follows: “In every case, it is not whether the individual plaintiff suffers what he (or she) regards as substantial discomfort or inconvenience, but whether the average man (or woman) who resides in that locality would take the same view of the matter. The law of nuisance does not guarantee for any man (or woman) a higher immunity from discomfort or inconvenience than that which prevails generally in the locality in which he lives.”
Every strata council must decide what’s reasonable, balanced and is reasonable use and enjoyment of property without interruption.
Some nuisances we all understand: a loud party or vacuuming at 3 a.m., a dog barking all day, cigarette or barbecue smoke, cooking odours, exercise machines or hot tubs running at night causing disruptive vibrations or noise.
Many complaints relate to building designs or age. Older wood-frame buildings with hardwood floors may have no sound suppression, so even a pet or person walking across the floor may be an irritant.
The remedy may be notice of complaint and eventual bylaw enforcement. But where building designs or systems contribute to the nuisance, the corporation may have to assess other remedies first within its operations and bylaws to reduce the impact on owners.
In some instances, strata corporations have upgraded ventilation systems to deal with smoke or odour, adopted bylaws requiring area carpets in high traffic areas, and even in some cases amending bylaws that limit or restrict activities to make the lifestyle more reasonable for the occupants.
Tony Gioventu is executive-director of the Condominium Home Owners’ Association. E-mail: [email protected].
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