Over the last few decades, Ontario has experienced a significant rise in the number of condominium developments. The Condominium Act, 1998 is the legislation that governs these developments. Specifically, the Condominium Act, 1998 sets out the rights and responsibilities of the condominium community, including developers, purchasers, owners, mortgagees, residents, condominium corporations and their boards.
The Ontario government has sought to introduce numerous changes to the Condominium Act, 1998 over the last few years to help streamline the dispute resolution process and to clarify the rights and responsibilities of the various stakeholders to ensure better transparency and accountability. Many of these changes, however, have not yet come into force.
One such change that is projected to come into effect soon is the new provision dealing with noise complaints.
Most condominium corporations have by-laws and/or rules about creating noise and disturbing other residents. In its current form, the Condominium Act, 1998 does not specifically deal with noise complaints. Section 117 of the Condominium Act, 1998 prohibits a person from allowing a condition to exist or to carry on activity in a unit or in the common elements if it is likely to damage the property or injure someone. However, it is unlikely that noise issues will result in injuries or damage to property.
Section 117 will soon be amended to prohibit anyone from creating or continuing with unreasonable noise that is a nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets of the condominium corporation.
Under section 17(3) of the Condominium Act, 1998, condominium corporations are required to enforce the provisions of the Act and of the declaration, by-laws, and rules of the condominium. If an owner, or the owner’s tenant(s), does not comply with the Act, declaration, by-laws or rules, then legal action may be taken against them.
What Constitutes a Nuisance, Annoyance or Disruption?
Living in a condominium often means that residents must make certain compromises, such as living with reasonable noise created by neighbours. The challenge becomes determining when the noises of everyday life cross the line and become legitimate legal complaints. When does noise become a nuisance, annoyance or disruption within the meaning of the proposed legislation?
Making a noise that impacts another person’s quiet enjoyment of their property can be considered a nuisance. However, whether the noise rises to the level of creating a nuisance will depend on what level or noise or interference is considered “reasonable”. We all experience life subjectively; what bothers one person may not bother another. The Court, however, is tasked with determining the level of noise that is objectively reasonable to the average person. The Court will consider the nature and frequency of the noise, and the nature of the neighborhood and property.
However, what noise the Court will find to be an annoyance or disruption has yet to be determined.
Take Note of the Noise Complaint
Nevertheless, if you think a neighbour’s noise is affecting your ability to enjoy your home, look for ways to create evidence to support your complaint. Take recordings of the noise, keep a journal of the disturbances, retain an acoustic engineer to measure the level of noise in your home compared to normal levels, etc.
Similarly, if you receive a noise complaint, ask for specific details about the type of noise and timing of the incident. If you want to challenge the complaint, you will need to show the condominium corporation and/or the Court that you were not creating or continuing unreasonably noisy activities at the time of the complaint.
The Best Solution
Regardless of the law, the simplest and most cost-effective way to resolve noise complaints is to work with your neighbours and your condominium corporation to determine whether the noise is unreasonable and to look for ways to minimize the disturbance.
If you believe your neighbour or condominium corporation are creating unreasonable noise, speak with Victoria Boddy, a condominium lawyer at Augustine Bater Binks LLP at today.