Dealing With Condo Noise

by Richard Wright

As more and more of us are moving into condominiums and townhouses, the likelihood of our peace and quiet being disturbed by inconsiderate neigbours is higher than ever. But when we are disturbed by noise from another unit or from the common property, how does the law determine what level of noise is excessive?

To understand the answer to that question, it will be helpful to know some basic things about how sound levels are measured and about the (British Columbia) Condominium Act.

Sound and Decibels

Some particularly annoying neighbour sounds such as the thumping of stereo bass are more accurately measured on the dBC scale, which gives greater weight to lower frequencies. Unfortunately, the dBA scale is the one most commonly recognized in legal disputes.

The Condominium Act

131. Prohibitions.
(1) An owner must not do any of the following:

...
b) make undue noise in or about any strata lot or common property,
...

Duties of owner
115. An owner must do all of the following:

...
(d) use and enjoy the common property, common facilities or other assets of the strata corporation in a manner that will not unreasonably interfere with their use and enjoyment by other owners, their families, or visitors;
(e) not use the lot, or permit it to be used, in a manner or for a purpose that will cause a nuisance or hazard to any occupier of a lot, whether an owner or not, or his or her family;
...

In Canadian law, when statutes do not specify a point of law, you can turn to case law for an answer. Case law, or precedent, is law that has been decided by a judge, and it often fills in gaps in statutes like the Condominium Act.

Is there a precedent regarding what constitutes too much noise? Yes, there is. In the Supreme Court of British Columbia, in the matter of Janine Bond v. the Owners of Strata Plan VR2538, Mr. Justice Braidwood decided that an increase of 5 dBA over the background level was too high. The judge arrived at this conclusion by referring to a Central Mortgage and Housing criterion that says: "...the maximum level should not exceed the interior background level by more than 5 dBA."

Note that this is a relative measurement. That means that you must take two measurements of noise: one when all is quiet, and another when there is noise present from the allegedly offending source. The difference between the two readings must not exceed 5 dBA or else it will be considered too high. In this case, the judge also stated that the maximum acceptable level of noise coming from outside the apartment was 35 dBA.

How Can You Measure the Level of Noise in Your Condominium?

Your own measurements can be useful in determining the extent of the problem, but if you intend to use sound level measurements as evidence in a legal action, you should hire a professional to take the measurements. Look in the Yellow Pages under "Acoustical Consultants".

What to Do If You Are Being Bothered by Noise in Your Condominium

The first action you should take should be to talk to the noise-makers. Make sure that they know that their noise is disturbing you. If that doesn't work, then contact them in writing. If the noise is coming from renters, make sure that you also write the landlord. If after some time the noise still does not subside to your satisfaction, it's time to start writing to your strata council.

The strata council is an elected body of not fewer than 3 and no more than 7 owners who govern the strata corporation for one year at a time. These persons have rights and responsibilities given to them by the Condominium Act. For example, one responsibility is that they must enforce the by-laws of their corporation, which include by-laws specific to their own strata corporation as well as the by-laws included in the Condominium Act itself.

The best thing you could do is obtain and read the Act. Copies can be purchased at the closest office of the Queen's Printer. There is one at 849 Hornby St, in downtown Vancouver; phone (604)660-0981. The Act is also avail able online at the Queen's Printer website.

Here are some parts of the Act, besides those already cited, that you will want to pay special attention to:

14 Subject to this act, the strata corporation is responsible for the enforcement of the by-laws, and the control, management and administration of the common property, common facilities and the assets of the strata corporation.

34(2) A strata corporation may do one or more of the following:
... (c) remove privileges or set fines for breach of the bylaws, rules and regulations.

116 A strata corporation must do all of the following:

(a) control, manage and administer the common property, common facilities or other assets of the corporation for the benefit of all owners...

118(1) Subject to any restriction imposed or direction given at a general meeting, the powers and duties of the strata corporation must be exercised and performed by the council of the strata corporation.

• has rights that normally belong to another person
• must exercise those responsibilities to the benefit of the other person.
• must protect and promote the interests of the beneficiary.
• must not let a conflict of interest prevent him or her from performing his or her duties to the beneficiary.

What to Do If Your Strata Council Won't Help You

If your strata council refuses to help you, even after you have written to them and attended strata council meetings, you have options including the following:

1. Live with the noise.

2. Move. Unfortunately, this is often what happens. In my opinion this is the worst possible outcome.

3. Refer to arbitration. If an owner requests arbitration on any matter, then the strata company must go to arbitration. The arbitrator's decision is final and legally binding.
   The advantages of arbitration are it is relatively fast, cheap, and effective at resolving the matter, for better or for worse. The problems with arbitration include the following:
   • The arbitrator is not obliged to make a decision based on the law.
   • The only qualification that an arbitrator must have is that he or she must own and live in a condominium, so almost anyone can be named as an arbitrator.
   • Since very few arbitrated decision are made public, it is impossible to know beforehand whether your arbitrator will be fair and impartial, or what the chances of a successful outcome are. I have spoken to one property manager who has seen the arbitration process work against the victim of noise. I also think that a professional arbitrator might have a bias in favour of the strata company, because they are ones who are paying him or her, and also because the strata company will probably use him or her again if they like the decision.

4. Apply to the Supreme Court of British Columbia for a mandatory injunction. This is the most drastic and complicated option. The Condominium Act states (Section 40) that you can apply to the courts for a mandatory injunction to order a council to fulfil an obligation under the Act. This is the section that Janine Bond invoked when she sued her strata corporation and won. Ms. Bond was subjected to noise from a common jacuzzi room and her strata council refused to shut it down. Mr. Justice Spencer found that that the strata corporation was treating Ms. Bond unfairly and ordered it to completely shut down the jacuzzi room. Although this outcome was successful for the petitioner, it should be noted that it took about three years to bring the case to a resolution.

Richard Wright
C/O Right to Quiet Society
#359 -1985 Wallace St.
Vancouver, B.C. V6R 4H4

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