Condo corporation failed in noise control


thestar.com
Bob Aaron
Bob Aaron bob@aaron.ca

Posted On: Saturday, June 8, 2013
One of the most common complaints from condominium residents is noise coming from neighbouring units. In the last 40 years, more than 100 condominium noise cases have gone to trial in Ontario courts.

The latest of these involves an application by Elizabeth Dyke against Metropolitan Toronto Condominium Corporation 972 to require the condominium to enforce its noise bylaws. The building is a 349-unit high-rise on Wellesley St. E. near Yonge.

Earlier this year, Dyke was living on the 8 th floor of the building with her daughter, and used anearby unit as her law office (she has since retired.)

In February, 2010, two new tenants moved into suite 911, the unit above the Dyke residence. The wife explained to Dyke that she was a professional dancer and sometimes used her condo as a practice area.

The noise from upstairs escalated over the coming months and by July, 2011 the tenant was using her unit as a full-time professional dance studio.

In August Dyke reported the nuisance to the police, and began complaining to the property manager.

During the fall of 2011, Dyke made numerous complaints to the management and security desk. Reports from the security personnel described the sound as similar to the constant banging of a hammer.

Despite Dyke’s many requests and complaints, neither the condominium board nor the property manager ever sent a letter to unit 911 requesting that the noise-making stop. There was no follow-up or communication with the tenants or owners of unit 911.

The noise continued in late 2011 and Dyke told the condo management that she was experiencing ill health effects and stress due to the constant noise above her.

Following a demand letter from Dyke to the condominium in October, 2011, the board’s lawyers responded that they had been unable to verify the intensity of the disturbing noise, despite several written reports to the contrary from their own security personnel.

In December, Dyke was ordered by the condo corporation to stop conducting her law practice in the unit, even though she had done so for 17 years and did not see clients in the unit.

Dyke finally moved out of the unit in December, 2011, due to the detrimental health effects from the noise and related stress. She had advised the condominium corporation in advance of the reasons she was moving, but no action was taken to reduce the noise so that she could move
back in.

Dyke’s proceedings against the condominium came before Justice Edward Morgan in January of this year. The judge noted that the condominium rules prohibit noise transmission from one unit to another if it causes an annoyance or disruption. In the event the noise does not abate
following written notice, the board is required to take whatever action it deems necessary.

In his decision, Justice Morgan noted that in his view, the condominium corporation “has not satisfied this duty.” The corporation, he wrote, “has acted in a way which unfairly disregards the interests of (Elizabeth Dyke) in failing to take adequate steps to enforce its own rules.” Its
actions amounted to “unfairly prejudicial conduct.”

The judge added that Dyke did not deserve absolute quiet in her condominium but that the board has a responsibility to enforce its rules in a balanced way so that all of the owners and tenants can enjoy their respective units. “It stands to reason,” he added, “that (Dyke) is entitled
to live underneath a residential apartment unit, and not underneath a professional dance studio.”

The condo corporation was ordered to pay Dyke her out-of-pocket expenses of $40,325, plus a huge costs award of $19,500. Dyke’s claim for pain and suffering, mental anguish and distress, plus loss of comfort and quiet enjoyment, was deferred to a later hearing.

The case is a warning to condominium residents that persistent noise will not be tolerated. It’s also a reminder to condominium boards and managers that failure to actively enforce compliance with their own rules and bylaws will come at a steep price.

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Bob Aaron is a Toronto real estate lawyer and frequent speaker to groups of home buyers and real estate agents.
He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.

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