Reference: Condominiums – Noise and Vibration. A Nuisance #142

By Gerry Neely
B.A. LL.B.

It's probably just a coincidence that the manufacturers of stereo equipment are packing more noise into a smaller box at a time when more condominiums are being built, and more and more people are living separated only by a common wall. Condominium living has been described by one judge as "a communal type of living which often requires a tremendous amount of co-operation and consideration from each other, for all residents to enjoy the lifestyle to its maximum."

The 1812 Overture which is music to one man may sound like a 21 gun salute in the bedroom of a neighbour. How will judges decide what should be the limits upon conduct which the neighbour claims denies him the full enjoyment of his condominium? One judge who was asked for an injunction to restrain a cigar smoker, initially thought the request frivolous. However, when he reviewed the circumstances, he said, "Just as no person should be subjected to the unrestricted cacophony of stereo music from his neighbour, neither should he be subjected to the continuing smell of cigar smoke if that smell is unreasonably disseminated into other peoples' worlds. I consider it to be unreasonable if a person, knowing that the smell is deleterious to others, persists, unless, of course, it can be shown that he has no control over its presence."

These comments were referred to in a case in which the owner of a condominium had installed an air-conditioning unit and replaced a bathtub with a jacuzzi whirlpool.

The owner had applied to the municipality for a permit to alter the apartment by removing non-bearing partitions only. A plumbing permit was required but was not obtained. The consent of the Strata Council for the renovations, alterations, or installations made by the owner was required by the bylaws of the Strata Corporation. That consent was not sought.

The occupants of the suite below his were elderly and they complained that the operation of both units created excessive noise and vibration.

Section 115 of the Condominium Act describes the duties of an owner. Those duties compel the owner not to use his strata lot in a manner that will cause a nuisance or hazard. The section also obliges an owner to comply with the bylaws, rules and regulations of the Strata Corporation.

The Strata Corporation commenced an action for an injunction to restrain the uses which created the nuisance of noise and vibration. The evidence was that both the vibration and noise from the use of the jacuzzi/tub and the air-conditioning unit were both beyond acceptable levels of tolerance. The owner had done everything he could do to eliminate the noise and vibration, but was unsuccessful. The Judge agreed to issue the injunction order and fortunately for the owner, the Strata Council consisted of reasonable people. They were not asking for the removal of the units, but merely their regulation. Since the major interference to the people below was in the bedroom and bathroom, the Court directed that the jacuzzi be operated only between 8:00 a.m. and 10:00 a.m. and 4:00 p.m. to 8:00 p.m. while the air-conditioning unit hours were restricted to 2:00 p.m. to 8:00 p.m.

The Judge reached this decision by placing himself in the position of a reasonable man. That is to say "a person whose notions and standards of behaviour and responsibility correspond with those generally obtained among ordinary people in our society at the present time, who seldom allows his emotions to overbear his reason and whose habits are moderate and whose disposition is equable."

In other words, the people you would like to have living on either side of your condominium.

1.

The Owners, Strata Plan MW87 v. Gace Maracinian,S.C.B.C., No. C882848 Vancouver Registry, March 9, 1989.

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