Posted by: Pihl Law Corporation | Posted on: January 22, 2013
Last year I wrote about an interesting case involving the owners of a condo whose behaviour towards their neighbours was so disruptive and obnoxious that the Strata Council, who had given up after years of letter, notices and fines, applied to the court for an order to force this owner to sell her unit and move. That order was granted in Owners v. Jordison discussed in my article dated April 10, 2012. I hailed the decision as a victory for strata corporations everywhere who struggle to deal with an owner who makes life difficult for everyone else. Unfortunately (but correctly) the Court of Appeal disagreed with the trial judge’s remedy of a forced sale. The Court of Appeal decided that section 173 of the Strata Property Act gives the court two remedies – a) to order an owner to perform a duty required by the Act, the bylaws or the rules; and b) to order an owner to stop contravening the Act, bylaws or rules. Then subsection c) gives the court the power to make any other orders to give effect to a) or b). In the Jordison case the trial judge skipped over a) and b) and used c) to support an order for the owner to sell her unit. The Court of Appeal decided that c) was not a stand-alone remedy and the court needed to make an order under a) or b) first. The Court of Appeal would not decide the hypothetical question of whether the remedy of sale could be available for a breach of an order of a) or b). The Court of Appeal did uphold the trial judge’s additional remedy under b) ordering the Jordisons to stop breaking the strata rules. Apparently the Jordisons had listed their unit for sale in any event.
Another interesting “bad neighbour” situation arose in the recent case of The Owners, Strata Plan LMS 4255 v. Newell 2012 BCSC 1542. Mr. Newell bought a penthouse condo in Yaletown, in Vancouver. He spent $800,000 renovating his condo including a free standing hot tub and music system on his rooftop deck. He then began partying. He ignored the letters and fines from council for disrupting the quiet hours of 11 p.m. to 8 a.m. The $200 fines were paid and not considered a deterrent to the wealthy Mr. Newell. The court agreed that when the fines failed to have any effect the Strata Council’s next move was to apply to the court for injunctive relief* – section 173 b). Mr. Newell’s evidence at trial was that his neighbours were too sensitive to sound and that they did not “get” the Yaletown lifestyle which included a higher level of ambient noise. The Court granted the Owners an injunction preventing Mr. Newell from using his hot tub or sound system in the quiet hours. In media interviews Mr. Newell was quoted as saying he would abide by the court orders. The judge’s remarks about the conduct of condo owners generally were interesting: “Mr. Newell has displayed a poor grasp of one of the basic principles of condominium living – even in Yaletown – so aptly described by Mr. Justice Hall: that the proximity dictates that some forbearance and discretion is required of the occupants of such properties in order to avoid the infliction of misery upon fellow occupants. The Bylaws – which bind Mr. Newell so long as he owns Unit 3701 – exist to that end.”
Stay tuned for Part 3 which will set out a new dispute resolution process for strata owners under the Civil Resolution Tribunal Act.
*An “injunction” is an order to do or refrain from doing something.
The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional