When is Noise from Another Unit too Noisy?

From what we gather anecdotally from the myriad of complaints about unit owners’ failure to breaches of condo rules, noise complaints are perhaps the most common. And, with more and more people living on top of each other in multilevel “apartment style” condo buildings, complaints about noisy condo neighbours may well increase in number.

Condos generally have rules that prohibit unit occupants from generating excessive noise that keeps unit occupants from “the use and enjoyment of their unit and the common elements”. These rules are in addition to common law obligations prohibiting conduct that is considered a nuisance: that is, acts that prevent a property owner (or occupant) from the reasonable use and enjoyment of their property. Excessive noise, and noise at odd hours, may be unlawful on both grounds. But, ascertaining how much or what kind of noise is not reasonable is no easy task.

Case in point: the news out of British Columbia early this year was dominated for a time by the story of a BC family that says they were being “forced out” of their low-rise condo because of constant complaints about their noisy young children.  The nature of the noises complained of was only vaguely referenced as the noise of children running and dropping toys (the complainant was downstairs). After many complaints, the condo board warned the family that they would be subjected to fines, as per their by-laws, if the complaints continued. The family now says they will have to move.

Just last week, also in the context of a noisy upstairs neighbor, a judge in Toronto refused to find a condo board in contempt of court for failing to take court ordered steps to ensure that a unit owner had “the quiet use and enjoyment” of her unit. The judge stated that, the continued noise complained of was “the occasional noises that result from ordinary residential usage”, and went on to state that the complainant was “seeking a level of quiet to which an apartment dweller is not legally entitled.” Seeing as the original noise complaints were due to the upstairs neighbor running a dance studio in her unit, the judge had little sympathy for these latest “everyday” noises.

Back to the BC case: Considering that the family in question was living in a wood-framed, low-rise building that they say catered to young families, the level of noise that would warrant proper consideration and compliance action by the condo board would have to be out of the ordinary. Certainly, anyone buying a unit in such a place would, in our view, necessarily have to expect and put up with the noises of everyday and ordinary family living, including kids that, simply by their nature, make noise. An occupant can’t expect total silence in a wood-framed building housing that demographic.

Realistically, a prospective condo owner that wants to live with the least amount of noise will have to either buy in a concrete structure, or in a freehold style single home.  Otherwise, they will have to put up with the regular noises of their neighbours living their everyday lives, and understand that only “disruptive” or unusual noise (either by its nature or when it occurs) will warrant action by the condominium board.

How Does a Condominium Corporation Lease Roof Top Space?

Leasing a condominium’s roof top space, normally to a telecommunications provider, can provide some revenue which can serve to reduce overall common expenses. Once the condominium board has made the decision to lease roof top space to a telecommunications provider, the condominium must then consider the procedural requirements under the Condominium Act.

The roof top typically forms part of the common elements of the condominium. Section 21 of the Condominium Act states that the Corporation may lease a part of the common elements, provided this is authorized by by-law. Accordingly, a by-law authorizing the lease of the roof top will be required prior to entering into the lease.

If a telecommunications provider wishes to lease roof top space from the condominium corporation, it will be because the roof is well situated for their purposes. As a result, the condominium corporation may be approached by other telecommunications providers who wish to enter into additional leases.

We therefore recommend that the by-law not be specific to the particular telecommunications provider. The by-law should contain more general wording allowing the condominium corporation to lease portions of the common element roof, identifying the location of the potential leased areas and all potential purposes for such lease(s). This provides the condominium corporation with the latitude to enter into other telecommunications leases as it wishes.

The by-law authorizing the leasing of the roof top space must be passed by a resolution of the board, confirmed by the majority of all owners at a meeting held for that purpose, and registered prior to it coming into effect.

The proposed roof-top lease should also be carefully reviewed for required revisions. [In our experience, the draft lease from the prospective tenant can often be “slanted” in favour of the tenant.]

The corporation may wish to obtain the assistance of legal counsel, and may also wish to have the corporation’s engineer review and approve the proposed roof-top installations. In most cases, we feel that the tenant should agree to cover the related legal and engineering costs.

One other note: In most cases, the corporation’s non-profit status should not be jeopardized by this sort of lease; but this is something that should be verified in each case with the corporation’s legal counsel and/or auditor.

Our experienced team of condominium lawyers can assist your condominium with any of the required steps to lease your roof top space.

Condominium Borrowing

Condominium corporations can borrow funds.

Section 56 (3) of the Condominium Act, 1998 states as follows:

“A corporation shall not borrow money for expenditures not listed in the budget for the current fiscal year unless it has passed a by-law under clause (1) (e) specifically to authorize the borrowing.”

So, borrowing by a condominium corporation must be authorized by by-law, unless the corporation is borrowing for expenditures listed in the current budget.

When a condominium corporation borrows, the corporation is then obligated to repay the debt in accordance with the terms of the loan. The payments are typically added to the common expenses (payable by all owners in accordance with the condominium’s Declaration). In some cases (where the purpose of the loan falls within the purposes of the reserve fund), the loan payments can be paid from the reserve fund – and the payments could then be built into the reserve fund study and plan. In some cases, a special assessment (often corresponding with the loan payments) may be necessary.

If the lender is agreeable, a condominium loan can be structured to allow owners to “opt in” or “opt out” of the loan. If this is permitted, an owner “opts out” by paying his or her share of the loan “up-front” – essentially as an up-front special assessment. However, this “opting out” possibility can add considerable administration to the loan (for the condominium corporation), and some lenders also won’t allow for opting out.

The primary security for the loan is an assignment (to the lender) of the condominium corporation’s rights to lien the units (ie. to levy and collect common expenses, including loan payments, from the owners). So, if a condominium corporation were to default on a loan, the lender would have the right to “step into the shoes” of the condominium corporation in order to collect common expenses as required to pay the loan. [As a practical matter, this rarely happens. In virtually every case, the condominium corporation makes the necessary loan payments, and attends to collection of common expenses, as necessary, on its own.]

A number of documents are required as part of a condominium loan transaction, including the by-law (in most cases) as well as a loan agreement, general security agreement and perhaps also an assignment of lien rights.

The loan normally must also be mentioned in the corporation’s status certificates.

Parking Units and Exclusive-Use Parking – What’s the Difference?

One of the areas that we notice that causes some confusion for condominium owners is the difference between parking units and common elements parking spaces, also called exclusive-use parking.

The primary difference between the two different types of parking is that parking units have their own separate legal title and are legally owned by the owner of the space, who will in most instances also own a dwelling unit in the condominium. This means that the owner of the parking unit can sell the parking space separately from the dwelling unit, subject to any restrictions in the condominium corporation’s governing documents. This also means that there is normally no specific allocation of parking spaces to each dwelling unit, as owners are often free to transfer their parking unit to another unit owner in the condominium.

For exclusive-use parking spaces, each parking space does not have its own separate legal title, and is part of the common elements. These parking spaces may be specifically allocated (to a particular unit) in the Declaration, or they may in some cases be allocated by the Board. In many cases, a dwelling unit will have its own parking space allocated to it. Therefore, the unit owner using the space does not hold legal title to the space, but has the exclusive right to use it. The unit owner is free to use the parking space subject to any restrictions in the condominium corporation’s governing documents.

However, some issues may arise where users of exclusive-use parking spaces begin to swap or lease out their spaces. As you can appreciate, the lack of separate legal title for each separate space can make it difficult for the condominium corporation to keep track of which unit owner is parking in which space, especially when units are being sold and new owners are moving into the condominium.

The condominium corporation can avoid the foregoing difficulties by setting out specific provisions, either through a by-law or rule, for the swapping or leasing of spaces and the requirement that the unit owners who are swapping or leasing the spaces notify the condominium corporation immediately so that it can maintain an accurate parking record. The by-law or rule could also include a provision that terminates the swap or lease of a space upon the transfer of the condominium unit by one of the affected owners. This will ensure that an owner purchasing a unit in the condominium can rely on the allocation in the Declaration. Alternatively, it may be possible to allow for “permanent assignments” of exclusive-use parking spaces. Our general recommendation is that such assignments be approved by the condominium corporation and registered on title to all affected units.