The rights of a condominium corporation to access owners’ units were addressed in a recent case of the Ontario Superior Court. In the case of MTCC 1328 v. 2145401 Ontario Inc., the condominium corporation sought access to one of the units. The owner of the unit below had complained about noise and vibration allegedly emanating from a spiral staircase in the unit. The corporation sought access in order to inspect and investigate the alleged noise and vibration. The owner refused. The Court granted the requested access. Continue reading “A Condominium Corporation’s Access Rights”
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.