Condominium Jacuzzi's Excessive Noise and Chlorine Odour #264
By Gerry Neely
The Condominium Act, as out-of-date as it is in many respects, may provide a remedy to a strata lot owner, who finds that a decision of the strata council to manage part of the common facilities for the benefit of all owners, interferes with the owner's enjoyment of her suite. Section 40 gives an owner the power, where a strata corporation fails to fulfill an obligation under the Act or bylaws, to apply to the court for a mandatory injunction requiring the strata corporation to perform the obligation.
This is what an owner did whose unit was directly above a jacuzzi, which was not in operation at the time she took possession. When the strata council approved its use, it found that the noise from the equipment and the voice levels associated with its use, together with the smell of chlorine were excessive.
The judge found that the noise exceeded the maximum acceptablenoise level and that the order of chlorine was offensive.
Instead however, of giving her an order which would prohibit the continued operation of the jacuzzi, he gave the strata corporation time to try and relieve the causes of her complaint.
The strata corporation was unsuccessful, in part because removing the odour successfully by the use of fans, resulted in an increase in the noise level. Engineers could give no assurance that the installation of sound isolation membranes would solve the problem. The strata council's solution was to limit the number of hours of operation, which helped with the noise level, but failed to eliminate the chlorine smell.
Section 116 gives the strata corporation the power to control, manage and administer the common property and common facilities for the benefit of all owners. This power could not be used to unreasonably interfere with the enjoyment of a member's separate property. The judge found that the conduct complained of was unreasonable and ordered the operation of the jacuzzi to cease. 1
In an earlier column, a case was discussed in which the seller's innocent failure to disclose a proposed heritage designation of a house, which the buyer/developer intended to demolish, was held to be a latent defect in the condition of the property, which entitled the buyer to damages. That decision was relied upon by a developer as a defense against payment to a seller of a take-back mortgage of $7,500,000, which was in default.
The defense was destined to be lost, but it was advanced by the developer's lawyer, in the hope that the judge would agree that this was an issue that required a full trial, rather than one that might result in immediate summary judgment against the developer. The argument was that the municipality's demand for a road through the middle of the property was a latent defect of which the seller was aware.
The contract between the seller and the developer gave the developer a period of time to satisfy itself as to the development potential of the property. In the developer's meeting with the city no mention had been made of the requirement for the road. The contract was subsequently amended to provide that the developer bought the property as-is and where-is.
However, as the judge said, developers are always aware that they are likely to be faced with demands by a municipality which will affect the proposed costs of the development. These requirements are not a latent defect in the property. Judgment was given for the amount of the take-back mortgage.2
Legally Speaking column #260 incorrectly stated in the ninth paragraph that, "The judge also stated that the agency could not waive its right to commission to obtain an advance for itself through the resale of the units, when waiving this right to commission deprived the salewoman of her rights."
This should have read "to obtain an advantage for itself through the resale of the unit . . ." We are sorry for any confusion this error may have caused.
|1.||Bond v. Strata Plan VR2538, B.C.S.C., Reasons for Judgment, November 4th, 1996.|
|2.||781834 Ontario Inc. v. Gilixton Developments Limited, [(21 OR 3d)428], (Affirmed on appeal), 29 OR 3d 160.|
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