I have, again, had the pleasure of successfully helping a client navigate the Civil Resolution Tribunal system in a dispute with a Strata Corporation and, in this case, noisy neighbours.
In the case of Moojelsky v The Owners, Strata Plan K 323, 2019 BCCRT 698, the owner lived in a condo style building with neighbours below and above her. Shortly after she moved into her strata lot in October of 2016, the owner experienced loud footsteps, the sound of children running, and, general loud noises from the unit above. Any attempts from the owner to deal with the neighbours were ignored by the neighbours and the noise continued.
A year later, the owner had a council president come into her unit to witness the noise first hand. The council noted that the noise was surprisingly lour and that she “actually expected a foot to come through the ceiling.” The council president also confirmed that noises from the unit above her own unit were no where near as loud.
By January of 2018, the owner made formal complaints to council saying that she was disturbed from the neighbours’ daily activities during the day and at all ours of the night. At that point, the owner had a noise log with over 30 disturbances, primarily from stomping and running children. The owner suspected that the noise was partially caused by an unauthorized flooring alteration in the unit above that didn’t have the proper underlay.
When council investigated the issue, the neighbours stated that the noises were from their daily living activities and promised to make some changes. The council was satisfied and determined that the noises were reasonable and took no further steps.
In response, the owner sent council, in February of 2018, a record of the decibel levels she had recorded in her unit – showing spikes between 64.4 and 90.2 decibels. HelathLink BC states that noises over 85 decibels are harmful. The owner requested a hearing and, at that hearing the council indicated that they would take further investigative steps. By June 2018, the council told the owner that they would not do anything further because they didn’t want to pay for the investigation and the one company declined to provide an estimate.
By the tribunal hearing, the owner had 15 audio recording of noise, decibel readings showing spikes between 57.4 and 73.1 and a noise log with over 70 entries between February 2018 and January 2019.
The CRT found that:
“43. In this case I find Ms. Moojelsky reasonably expected that the strata would investigate her noise complaint and address any noise bylaw violation. On the evidence before me, I find the strata failed to sufficiently investigate Ms. Moojelsky’s noise complaint, which was significantly unfair to her.
44. There is no evidence that any of the strata council members aside from [the past president] investigated the noise themselves. [The past president’s] investigation seemed to confirm unreasonable noise. It was only after Ms. Moojelsky submitted decibel readings and had an opportunity to be heard that the strata took any action to investigate. That action was to attempt to obtain an estimate from a sound professional, but when the first company they contacted declined to provide an estimate the strata council chose to take no further action, despite its president’s urging.
45. All parties except the strata acknowledge that at some point the previous owners of unit 309 (the upstairs unit) installed laminate floors, at least part of which remain uncarpeted. the strata’s position is that they have no records of the strata approving such a renovation, and therefore it must not have occurred. However, Ms. Moojelsky specifically alleges that the renovation was unauthorized, and therefore the strata would not have such records. I find that if the strata had investigated Ms. Moojelsky’s complaint it would have discovered with certainty what type of floors are installed in unit 309.
46. The strata says that after the White’s hearing they determined that no abnormal activity was taking place in unit 309 that warranted punitive action. However, Ms. Moojelsky correctly points out that the Supreme Court in Suzuki v Munroe, 2009 BCSC 1403, found that a nuisance can be created even when the activity complained of is otherwise lawful. The strata says that by purchasing a strata lot in an older building Ms. Moojelsky knowingly accepted that sound could travel between units. However, since the strata failed to take any action to investigate Ms. Moojelsky’s noise complaint beyond conducting hearings with the affected parties, I do not find this position compelling.
47. I find the strata failed to sufficiently investigate Ms. Moojelsky’s noise complaint, which was significantly unfair to her.”
The CRT then went on to consider whether the noise was a nuisance. The answer was an easy ‘yes’:
“48. The test of whether a noise is unreasonable or a nuisance is objective an based on a standard of reasonableness, after considering all of the surrounding circumstances. there is no requirement that a noise reach a certain decibel range in order to be considered unreasonable . . .
49. The [neighbours] and the strata all deny that the [neighbours’] activities have caused unreasonable noise in Ms. Moojelsky’s unit. However, there is no evidence that the [neighbours] or anyone on council or their agents, aside the [the previous president], entered Ms. Moojelsky’s unit to investigate the noise levels. [The president’s] evidence is that the noise was excessive and that she would not be able to live with it. Ms. Moojelsky submitted detailed logs recording frequent disturbances, numerous decibel readings showing significant spikes in decibel levels from noises emanating from unit 309, and video evidence which is consistent with her complaints. She also submitted 3 other statements from people who experienced the noise in her unit.
50. In the absence of any evidence from the [neighbours] or the strata about the noise in unit 209, i find the evidence establishes that Ms. Moojelsky’s noise complaint is justified. I find the noise from unit 309 of footsteps and children running constitute a nuisance and a violation of [of the bylaws]. . .”
As a remedy the CRT ordered:
- the strata to hire and pay for a qualified engineer of its choosing to investigate the source of the noise in Ms. Moojelsky’s strata lot, and to identify the best way to eliminate or reduce the noise
- the engineer is to provide a written report to be shared with Ms. Moojelsky and the neighbours
- all parties must provide reasonable access to their strata lots for the engineer; and
- the strata must pay Ms. Moojelsky $2,500 in damages for loss of enjoyment of her strata lot.
This case was certainly a learning experience for the strata and the neighbours and proves to show that you may be a nuisance even though you are not intending to and you must take steps to reduce your noise. It also shows that you cannot rely on the fact that the laminate floors were installed by a previous owner. If they cause a problem, you may be responsible to fix the floors at your own cost so that your neighbours are not disturbed by you.
This is also one of the rare decisions where the strata was ordered to pay damages for failing to act reasonably in response to the complaints in a reasonable time frame. Stratas are responsible to respond to bylaw complaints and investigate them to a reasonable extent.
This is certainly a good result for the owner who, hopefully, will receive relief from the noise and be able to enjoy her home from now on.