In a recent decision, the court examined what happens when a condo corporation fails to address a unit owners’ complaints of noise and vibration coming from the common elements.
The owner purchased her unit in 2010. It is the only residential unit on the ground floor next to a garbage room which housed a compactor. The building’s garbage chutes terminated into the garbage room. This created loud and intermittent crashing and tremors in the owner’s unit caused by heavy objects being thrown down the chute and loud noise and vibrations when the compactor motor was operating. The owner reported the issues to the condo in 2011 and by 2012, management conducted an inspection and found the noise to be “unbearable”. Few steps were taken by the condo to address the issues thereafter.
In 2018, new management took over and renewed interest in the owner’s complaints. The condo’s piecemeal efforts culminated in an inspection by the condo’s contractor in 2020 and a proposal for absorption and noise blocking material to be installed around the unit. Although the condo accepted its contractor’s proposal, the work wasn’t carried out and the owner brought an application for an oppression remedy under section 135 of the Condo Act. The condo then refused to carry out its contractor’s proposal when the owner started the court application.
The court inferred that because the condo took remedial steps throughout the years, it considered the owner’s complaints reasonable and the issues were within its statutory duty to maintain and repair common elements.
The court recognized that, under section 135 of the Condo Act, the owner wasn’t entitled to perfection, or a completely silent and vibration-free unit and that the condo had to balance the owner’s right to quiet enjoyment of the use of her unit, its statutory obligation to repair common elements and the financial cost of any potential solution that would be borne by all unit owners. But the court ultimately found that the condo had acted oppressively and awarded the owner $30,000 in damages because:
- the inexcusable length of time the condo took to address the owner’s real and demonstrated concerns about the functioning of the chute and compactor and the interference with her enjoyment of her unit. The court found that there were unacceptable gaps between the condo’s responses, and it was within the owner’s reasonable expectation that the condo would take her concerns seriously and act more quickly. The owner had to endure unacceptable noise and vibration levels while the condo dragged its feet to the detriment of the owner; and
- the condo informed the owner that the remediation work would not be completed unless and until the owner rescinded the court application. The court found the condo acted inappropriately and that act suggests reprisal against the owner.
Takeaway – Condos should investigate owner complaints and determine if next steps are warranted or reasonable. This might include engaging professionals to make recommendations and carrying out remediation steps when appropriate. If an investigation has been completed and the condo has taken the position it cannot or will not take further steps for legitimate reasons (e.g., not a common element issue or a complaint cannot be verified) that should also be clearly communicated to provide closure on the board’s position on the complaint. Ignoring complaints without proper investigation, flip flopping or postponing steps will come back to bite you. Threats of reprisal don’t reflect positively on anyone. Speak with a condo lawyer if you’re dealing with a difficult scenario to determine the appropriate next step.