The applicant/owner owned two units in a high rise condominium building. One unit was used as her residence, while the other was used to operate a law practice. In February 2010, new tenants moved into the unit above the applicant’s. The new tenants used their unit as a professional dance studio. The applicant complained to the tenants, the condominium’s security officer and property management office about the noise on numerous occasions. There were a number of security reports verifying the excessive noise coming from the tenants’ unit. Despite the owner’s complaints, the condominium and its property management company never sent any letters about the noise to the tenants. The condominium’s property management office then began targeting the owner by sending her letters advising her that she must remove her small dogs and cease using her unit as a law practice. They also alleged that the excessive noise could not be verified.
When the condominium and its property management office failed to take any steps to rectify the noise issue, the owner commenced an application seeking an order that the condominium enforce its own by-laws and rules. She also sought an order for special damages incurred as a result of herself and her daughter having to move out of her unit and renting alternate accommodation.
The court held that the condominium had failed to satisfy its duty under section 17(3) of the Condominium Act, 1998, which states:
(3) The corporation has a duty to take all reasonable steps to ensure that the owners, the occupiers of units, the lessees of the common elements and the agents and employees of the corporation comply with this Act, the declaration, the by-laws and the rules.
The court also held that the condominium unfairly disregarded the owner’s interests in failing to take adequate steps to enforce its rules. The court held that the harassment of the owner by the condominium also constituted unfairly prejudicial conduct, contrary to section 135 of the Condominium Act, 1998. As a result, the condominium was ordered to pay $40,325.78 in special damages to the owner. The court refused to award damages for pain and suffering, mental anguish and distress, loss of income, or loss of comfort and quiet enjoyment. The court also awarded the owner costs in the amount of $19,500.00.
In obiter the court stated that the owner does not have a right to absolute quiet in her unit. However, the court held that she was entitled to a certain level of quiet enjoyment, which clearly did not include living below a dance studio in a residential condominium.
Bottom line: This case confirms that a condominium has a duty to ensure compliance with the Condominium Act, 1998, and its declaration, by-laws and rules pursuant to section 17(3) of the Condominium Act, 1998. The court also confirmed that failing to do so may result in a finding of oppressive conduct against the condominium pursuant to section 135 of the Act and serious cost consequences for the condominium. Finally, the court stated that the owners do not have a right to absolute quiet in units.
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