[author: Barbara Holmes]
Will fines induce a breaching owner to comply with the condominium documents? Condominium corporations in Ontario are not permitted to fine owners who breach the condominium documents. Fines are, however, permitted in many U.S. states and also in British Columbia. A recent case in British Columbia, Strata Plan LMS4255 v. Steven Newell, illustrates that fines may not be effective in getting a unit owner to cease breaching the condominium documents.
In this case, the unit owner of a penthouse suite with an exclusive use balcony and roof deck above the unit, spent more than $800,000 on renovations, which included the installation of a hot tub, barbecue and entertainment system (TV and wall-mounted speakers) on his exclusive-use deck. Sounds like one of those bachelor pads that many of us have seen in the movies. After completing the renovations, the owner hosted many noisy parties that lasted until the wee hours of the morning.
Numerous noise complaints were filed, not only by the owners adjacent to and directly below Mr. Newell’s suite, but also by residents in the other building forming part of the complex. Initially, the noise complaints related to the construction and renovations carried out before Mr. Newell moved in. After he moved in, the noise complaints related primarily to noise generated from the parties. In all, more than 35 complaints of noise disturbances between 11:00 p.m. and 8:00 a.m. were filed, some of which also resulted in police attendance.
The Corporation’s by-laws had some quite extensive provisions related to noise and, in particular, one provision established a quiet period from 11:00 p.m. until 8:00 a.m. every day, during which owners were expected to take special care and attention not to make noise. In response to the complaints, the unit owner was fined numerous times, each fine being in the maximum amount of $200. The unit owner promptly paid all the fines, but continued to hold loud parties.
In addition to the noise issues, the Strata Corporation took the position that the installation of the hot tub was an unauthorized installation and thus, should be removed. (The owner had previously asked for consent to install the hot tub, which was declined by the Corporation. Despite this, the hot tub was installed.) The Strata Corporation had failed its fall protection equipment inspection, as the location of the hot tub impeded the usage of two anchors required for proper window washing procedures.
The Strata Corporation brought an application against the unit owner, as well as John Doe and Jane Doe and other persons unknown. This was done so that any court order would also be binding on all the attendees at the unit owner’s parties. The Strata Corporation’s application sought the following orders:
a prohibition between the hours of 11:00 p.m. and 8:00 a.m. on making noise on the deck or the balcony that can be heard in other units;
a prohibition on having any entertainment system, television, speakers or musical instrument on the deck or the balcony; and
removal of the hot tub and restoration of the deck to its condition prior to its installation.
From the unit owner’s perspective, the gatherings at his condo were simply normal, private social gatherings of normal frequency. He claimed that the sound insulation in the building was inadequate. He also took the position that the noise level generated from his unit was consistent with the noise level that one would find in a hot, hip, happening part of the city, as this condominium was, and consistent with the standards of reasonable people living in the area. He even claimed that the neighbour below him was overly sensitive to noise as he had previously lived in a quiet, stodgy part of Vancouver. As for the hot tub, he claimed that the hot tub was not an alteration of the common elements as it was a free-standing moveable item.
At the end of the day, the court made the following order in favour of the Strata Corporation:
(a) a prohibition between the hours of 11:00 p.m. and 8:00 a.m. from using or operating an entertainment system, television, speakers or musical instrument on the deck or balcony; and
(b) a prohibition during the hours of 11:00 p.m. and 8:00 a.m. from using or operating the hot tub on the deck.
In granting the order, the court determined that “Mr. Newell has displayed a poor grasp of one of the principles of condominium living … that the proximity dictates some forbearance and discretion is required of occupants of such properties in order to avoid the infliction of misery upon fellow occupants”.
The court determined that the hot tub was not an alteration to the common elements and thus, was allowed to remain. This determination is consistent with the Ontario case, Wentworth Condominium Corp. No. 198 v. McMahon, where the Ontario Court of Appeal concluded that a hot tub was neither an addition or alteration.
With respect to the problems created by the location of the hot tub, no order was made as the Strata Corporation did not seek an order that the hot tub be moved; however leave to apply for further relief was granted.
This case illustrates that, in the case of wealthy owners, fines may not be a deterrent to stop behaviour that is inconsistent with the Corporation’s documents. However, for those on a more limited budget, we expect that the fines will definitely provide some impetus to induce compliance.