Part 41 published on 01/02/13
Condominium corporation failed to meet its obligation to enforce its rules
An owner complained to the condominium corporation about another resident’s breach of the rules respecting noise. The corporation then failed to take steps to prevent the ongoing noise. As a result, the complaining owner eventually applied to Court for an order requiring that the corporation enforce its rules. The complaining owner also claimed damages suffered due to the excessive noise. The Court’s decision included the following:
Section 17 (3) of the Condominium Act, 1998makes it clear that the (condominium corporation) has a duty to ensure compliance with its own by-laws and rules. In my view, the (condominium corporation) has not satisfied this duty.
Further, section 135 creates an oppression remedy where the conduct of a condominium corporation is “oppressive or unfairly prejudicial to the applicant or unfairly disregards the interest of the applicant”. In my view, the (condominium corporation)… has acted in a way which unfairly disregards the interests of the Applicant in failing to take adequate steps to enforce its own rules.
I hasten to say that the Applicant does not, as she has occasionally suggested in her correspondence and her cross-examination, deserve absolute quiet in her condominium units. The (condominium corporation) has a responsibility to enforce its rules in a balanced way so as to ensure that all of the owners and tenants can enjoy their respective units…. However, it stands to reason that the Applicant is entitled to live underneath a residential apartment unit, and not underneath a professional dance studio. That level of quiet enjoyment is certainly within the Applicant’s reasonable expectation.
The Court ordered the condominium corporation to take all reasonable steps to enforce its by-laws and rules, in particular by notifying the owners and/or tenants of the units above the complaining owner’s unit that “adequate additional floor covering must be installed in the unit to prevent noise from reasonably disturbing the comfort or quiet enjoyment of the Applicant”.
The Court also ordered the condominium corporation to pay to the complaining owner, damages of $40,325.78, being the owner’s costs incurred for having to move to a new apartment. Finally, the Court said: “I make no finding with respect to the Applicant’s claim for further compensation for pain and suffering, mental anguish and distress, loss of income and loss of comfort and quiet enjoyment. Those issues are deferred to a further hearing on a date to be scheduled with the Court.”
[Editorial Note: This case confirms the duties of condominium corporations to enforce their governing documents. Failing to take reasonable enforcement steps may be considered oppression and may result in successful claims for damages and costs against the condominium corporation.]