As decorating tastes and styles have changed, more and more strata lots have had hard surface flooring installed in them. In some cases, this has lead to complaints from the owners below regarding noise that is transferred from above. Those situations can be difficult to deal with. A series of Civil Resolution Tribunal (CRT) decisions have provided some guidance on the subject.
The first decision in the series is Torok v. Amstutz et al 2019 BCCRT 386 in which the CRT had to determine whether or not the laminate flooring installed in upstairs strata lot was causing unreasonable noise and whether the strata corporation appropriately dealt with the situation.
In response to the complaint, the strata corporation had its strata manager conduct sound testing with a decibel meter. He concluded that the noise level was acceptable but that there was a rather “annoying squeaking/creaking” sound caused by the flooring. He recommended several options to address the problem. None of those were carried out.
With respect to whether there was a violation of the strata corporation’s noise bylaws The CRT concluded:
“For these reasons, I find the squeaking/creaking noise documented in the property manager’s August 25, 2018 report constitutes a nuisance and a violation of bylaw 3(I)(a) and (b). There is no requirement that noise reach a certain decibel range in order to be considered unreasonable or a nuisance. Rather, it is an objective determination, which must be made based on a standard of reasonableness, and in consideration of all the relevant facts.”
When it came to the issue of the strata corporation’s actions, the CRT held that it had not done enough by simply having its strata manager investigate and recommend a remedy. In reaching that conclusion the CRT said that following:
“However, I find the evidence before me does not sufficiently identify the nature and source of the noise problem in the owner’s strata lot. As previously explained, the property manager is not an expert in construction or engineering, and I do not accept his opinion as sufficient to establish Mr. Amstutz’s liability for the noise.”
It then went on to order that the strata corporation “hire and pay for a structural engineer to investigate the source of the noise in the owner’s strata lot, and to identify the best way to eliminate or maximally reduce the noise”. The Tribunal then directed that “once the source of the noise is identified by the engineer, the strata has a duty to enforce its noise bylaw by taking steps to ensure the noise is eliminated or reduced as much as reasonably possible in the circumstances.”
Lastly, the strata corporation was also ordered to pay $4,000.00 in damages as a result of its failure to properly address the problem.
The next decision in the series was De Mark v. The Owners, Strata Plan BCS3240 2019 BCCRT 512. In upholding the strata council’s decision that the noise was reasonable, the CRT held that an owner’s “expectation must be evaluated objectively taking all the circumstances into account.” In doing so the CRT cited the fact that the owner above had taken steps to reduce noise and that the building was a heritage building with a type of construction that allowed noise to travel more so than in other buildings.
The third decision was Bobiash v. The Owners, Strata Plan BCS2656 et al 2019 BCCRT 670, in which the CRT concluded that where there was a legitimate noise complaint arising from the installation of hard surface flooring. It held that “the strata has the power to require a flooring upgrade where the nature of the flooring in the unit as such that the strata cannot properly enforce the noise bylaw”. It then concluded that the strata corporation must correct the flooring installation to “a sound proofing level of at least equivalent to carpet flooring original to the development”; otherwise it would be unable to enforce the noise bylaw. Interestingly, the CRT held that the strata must bear a portion of those costs because the bylaws did not require the offending owner to obtain permission to change her flooring.
The last was Moojelsky v. The Owners, Strata Plan K323 et al 2019 BCCRT 698. In that case the CRT found that the strata corporation had not properly investigated the noise complaints because it failed to hire an expert to carry out sound testing. The CRT rejected the council’s view that it was an older building and Ms. Moojelsky should have known that sound could travel between units (a different view than in De Mark). Similar to the decision in Torok, the strata corporation was ordered to carry out investigations at its cost and to pay $2,500.00 in damages.
The CRT also commented on whether what might otherwise be considered normal living activity (in this case, footsteps and children running) could constitute a nuisance. In the end it held that such activities were a nuisance and stated the following:
“The test of whether a noise is unreasonable or a nuisance is objective and 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 (see Torok).”
What is clear from these cases is that strata councils cannot be dismissive of noise complaints, even if they consider them to be normal living noises. There is a duty to professionally investigate both the severity and source of the noise. Where the noise is unreasonable, the strata corporation must actively engage in implementing a solution to eliminate that noise. A failure to do so could be costly.
This article is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is lawyer whose practice focuses on strata property law. He frequently writes and lectures for strata associations. He is a partner with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or shawn@clevelanddoan.com. He can be followed on Twitter @stratashawn.
