Noise, Alterations, and the Duty to Act Reasonably

Today’s post is about a recent case involving noisy neighbours. Most people have dealt with a noisy neighbour at some point in their life. Unsurprisingly, noise is a common complaint in condominiums. It typically starts with an owner reporting noise by their neighbour. Sometimes they speak directly to their neighbour. Sometimes they don’t. Most of the time they report it to the condominium. The owner gets tired of waiting for the situation to be resolved by their neighbour or the condominium, so they start to retaliate by banging on the ceiling with a broom or harassing their neighbour. A recent case shows what to do (and not do) when involved in these situations.

In Missal v. York Condominium Corporation No. 504, an owner sought a declaration that he was treated oppressively by a condominium because it did not address excessive noise from another unit, and it refused to allow him to complete improvements and undertake security measures in relation to the common elements. The application originally included the owner of the unit above his unit as well, but he settled with the other owner and the application was dismissed against her, leaving the condominium as the only respondent to the application by the owner.

The owner asserted that the previous owner of the unit above removed acoustic underlay, but there was no evidence of such. The settlement reached with the owner of the unit above required her to install a sound attenuation barrier between the units, which she was in the process of complying with. Furthermore, the owner claimed that the noise was ongoing since 2007, but he only alerted the condominium to the issue in 2010 when he copied the manager on emails with the owner of the unit. When the current owner purchased the unit in 2011, the manager offered to allow the owner to inspect the work carried out in the unit above, but he declined to do so. He did not register a formal complaint or take any other action to request the condominium address the noise until 2020. There was no evidence that he asked the condominium to do anything about the noise prior to that time.

Furthermore, the judge found the condominium did what it was obligated to do under the Act and its documents. The condominium entered into a renovation agreement with the neighbour so she could address the issue. Before doing so, the condominium confirmed the acoustic underlay would exceed the standard of FIIC 69 included in the renovation agreement. After the material was installed the owner’s expert tested it and noted it did not achieve the FIIC 69 standard. The owner argued the neighbour failed to comply with the settlement agreement. The court noted that the owner’s own expert acknowledged that it would be “extremely unlikely” to achieve FIIC 69 due to the age of the structure and its materials of construction. The neighbour attempted to remedy the situation as best she could, using professionals and contractors to guide her. The owner’s own witness confirmed the noises were non-existent after the new flooring material was installed.

The judge found the condominium acted reasonably in the circumstances.

On the other hand, the owner acted unreasonably at times. The judge noted that the owner’s demand letter only provided the condominium 7 days to respond in the middle of a pandemic when it was challenging to find contractors to complete work or non-essential work was prohibited at times. The judge was not pleased that the owner commenced the application while the condominium and other owner were attempting to address the situation in the middle of a pandemic.

The owner also alleged the condominium’s conduct since July 2019 was oppressive because the condominium allegedly failed to address thefts and trespassing on his porch. He said the condominium failed to take any steps to address the issue. The condominium argued that the owner was asking the condominium to prioritize his wish list of items instead of balancing the rights and obligations of all unit owners. The judge was satisfied the board was discharging their duties honestly and in good faith without preferential treatment of board members.

The owner’s application was dismissed.

In our next post we will discuss some tips and tricks for people dealing with noise.