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When common property use results in common noise complaints: Part I

British Colombia is known nationally and beyond not only for its abundant natural beauty, but the real estate prices—the highest in Canada—that beauty inspires and enables. This holds particularly true for large urban centres such as Vancouver and Victoria, where owning a detached house remains out of reach for most middle class people. So it’s easy to understand how condominium (or strata) living presents a more accessible alternative. My husband and I live in the second Vancouver condo we’ve owned in the many years we’ve lived here and can attest to numerous advantages strata living offers, which, aside from relative affordability, include shared property maintenance costs and freedom from responsibilities like shovelling what little snow falls here.

But—and you knew this was coming—there’s a dark side. Or, to address my topic more precisely, there’s a potentially noisy side, in both the metaphoric and literal senses of the word. It took us two years of searching to find our current home, and that was because, as any good realtor will tell you, expecting to find a property that meets all the criteria on your wish list will lead to either disappointment or compromise. Make that wish list, by all means, but prioritize the wishes because they won’t all be granted.

Be aware that federal, provincial, and municipal governments regulate condominium properties as strata corporations that must have bylaws. While guided by a default list called The Standard Bylaws, individual stratas enjoy considerable latitude in amending and customizing this default. It might be hyperbolic to say each strata is unique as a snowflake, but it wouldn’t be out of line to characterize some of them as such, precious and persnickety as they can be. Having been pet owners for all our years together, we were astonished at the number of buildings out there in which our fur family wouldn’t be welcomed.

My husband and I are neither silence-obsessed seniors or kegger-throwing frat boys, but we do enjoy listening to music and entertaining occasionally, so it was important to us to find a place with good “soundproofing”, which I’ve since learned isn’t even a word. Unless we were fortunate enough to get a top floor corner unit (we weren’t), we’d have to pay close attention to room layouts as well as shared flanking walls and ceilings. We found a place we liked enough to consider making an offer, but when I asked the seller’s realtor about how well soundproofed the unit was, he looked at me as though I’d asked him how many Martians lived next door. Not a clue about anything to do with what I now know is called airborne sound insulation. We could have gambled on the hope of reasonable neighbours, but a suspicious discrepancy on square footage set off our trust sensors and we lost interest. Not long afterwards, we found and purchased our current home in an older but well-maintained strata building where neighbours are considerate and canine companions are welcome.

When the offending noise transmits to a residential unit from common property—to use the parlance of strata living—unexpected layers of complexity can develop.

What’s that sound?

And where’s it coming from?

Resolving complaints about disruptive owners unwilling to comply with their strata corporation bylaws can prove very difficult and may require the strata to apply to Court for an injunction. In a Condominium Home Owners’ Association (CHOA) article titled The Case of the Partying Penthouse Owner, contributor Adrienne Murray writes about The Owners, Strata Plan LMS 4255 v. Newell, an interesting case in that the owner caused significant disruption with the hot tub and loudspeakers he installed on his deck, as well as with the frequent parties he hosted there into the wee hours. (A fun and informative read, Murray’s article left me concluding that while I’d probably enjoy being Mr. Newell’s guest, I wouldn’t want to be his neighbour.) What many people unfamiliar with strata living don’t realize is that decks, even those attached to private units, fall under the category of common property.

Most common property, however, is easily identifiable as such (e.g. a shared hot tub room), and it’s important to realize that not all annoying sounds or vibrations originate from noisy neighbours.

When dealing with noise complaints, strata councils are well-advised to avoid making assumptions and take the time to investigate. Strata corporations bear legal responsibility to enforce bylaws, make reasonable decisions and provide owners with fair adjudication processes.

While late-night soirées or barking dogs are obvious problems, many persistent noise issues prove structural in nature. Strata corporations are responsible for the repair and maintenance of common property between residences, and when common property is a contributing factor in noise transmission between units, the strata corporation may be obligated to repair or minimize the transmission of sound.

Based on these Ontario statistics, it appears that significantly more noise complaints arise from common property emissions than residential ones. The Usual Suspects include pumps, HVAC equipment, elevators, fitness facilities, and party rooms. BAP Acoustics continues to work with a condo owner and her strata council on a case that started with a noise complaint several years ago. An earlier blog post details measures taken to subdue the Hot Tub from Hell.

Fixing the problem: Whose responsibility is it?

If you’ve read this far, you’ve already gleaned that strata corporations are nearly always liable for common property noise emissions. And once a strata meets legal obligations, individual owners generally bear any further costs.

So, what do we do about it?

To be clear, the pertinent (or more to the point, liable) “we” here seldom includes the property developer, who is only required to meet minimum building code standards. Even if that weren’t the case, indoor common property (at least in Canada) remains cheerfully uncomplicated by regulations or bylaws of any kind.

While these realities render dealing with bothersome noise from common property quite difficult, taking the following measures (based on condoinformation.ca recommendations) may get results:

  • Document the timing, frequency and nature of noise disturbances.
  • Wait at least a day, then phone the management office. Document the time and details of your call.
  • Your property manager should inspect the situation within a few days.
  • If you’ve received no response within a week, follow up with a letter and a copy of your noise disturbance log.
  • Still nothing? After another week, write a letter to your strata council, and attach copies of your letter to the manager and the log.
  • Remember that there’s power in numbers. Talk to other residents to see if the noise disturbance has affected them, and encourage their participation in addressing the problem.
  • If the situation is serious, you may wish to engage a lawyer to help you seek a court order, under Section 163 of the Strata Property Act of BC, that would require your strata council to comply and do something about the noise source.
  • If the situation is serious enough to require legal counsel and/or adjudication, consider hiring an acoustical consultant, who can measure airborne as well as impact sound insulation and compare results to requirements found in typical standards or lease agreements.

Strata bylaws: The proverbial ounce of prevention

In the absence of relevant strata bylaws or adherence to existing ones, unacceptable noise disturbance situations can be addressed through nuisance laws (explained here by the BC Law Institute) and taken before a court. In BC, these laws fall under the jurisdiction of the Civil Resolution Tribunal (CRT).

Putting literal structures in place to address sound insulation in the design and construction stage of a building will go a long way towards preventing troublesome noise issues. Drafting and enforcing fair—as well as specific—strata bylaws can achieve the same goal.

The above-noted litigious approach, however, strikes me as pretty last-resortish. While it may feel good to know “taking it to court” is an option, wouldn’t something more proactive feel better?

Noisy Newell’s strata council may not have needed to seek a court injunction if its bylaws included, for instance, “No amplified music in common areas between the hours of 11 pm and 8 am,” or “Don’t be putting a damn hot tub on your deck (which isn’t actually yours anyway), even if it can be deemed temporary, because yeah, we’re wise to that.”

But if a persistent noise issue is regularly causing you to lose sleep, rest (as best you can) assured that BAP Acoustics has, on numerous occasions, acted in expert witness and advisory capacities for condo owners and stratas. We encourage you to contact us with these and any other acoustic concerns.

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