Part 40 published on 01/11/12
Owner ordered to reduce noise
The owner has the exclusive use of a large roof-deck and a balcony adjacent to his unit (each being limited common property). He installed a number of items on the deck, including a hot tub, two air-conditioners, a large barbeque grill, and an entertainment system (including a big screen TV, two wall-mounted speakers above the hot tub, two speakers mounted into the balcony railings on either side of the TV and a large speaker below the grill).
The strata corporation alleged that there had been many gatherings at the unit and on the deck and balcony, causing noise that violated the corporation’s by-laws. The strata corporation also asserted that the hot tub and air conditioning units were common property modifications which had not been authorized by the corporation as required by its by-laws.
The strata corporation also said that fining the owner had been an inadequate deterrent.
The Court agreed to grant an injunction respecting the noise. The Court said:
Pursuant to s. 26 of the Strata Property Act, the Strata Council must exercise the powers and perform the duties of the strata corporation, including the enforcement of by-laws and rules. Levying fines is a form of punishment; it is not an enforcement of a strata corporation’s by-laws… There comes a point when a strata corporation must pursue injunctive relief.
The Court declined to order removal of the hot tub and air-conditioner, ruling as follows:
On the facts before me, I find that none of the hot tub and air-conditioning units is an “alteration” to common property. None were designed to be permanent, and the fact that a crane was required to hoist the hot tub up to its current home is not determinative. I find there has been no breach of Bylaw 6 (1).
Although the Court did not order its removal, the Court did grant relief respecting the use and location of the hot tub. The Court’s specific orders were as follows:
a. The (owner is) prohibited, between the hours of 11:00 p.m. and 8:00 a.m., from using or operating any entertainment system, television, speakers or musical instrument on the Deck or Balcony;
b. The (owner is) prohibited, between the hours of 11:00 p.m. and 8:00 a.m., from using or operating the hot-tub on the Deck; and
c. If the placement of Mr. Newell’s hot tub continues to be a problem in relation to the annual protection equipment inspection for (the property) the Strata Corporation has leave to apply for further relief.