By: Alex J. Chang, Associate
A dreaded scenario of condo home ownership is the nightmare neighbour. This is a neighbour that causes a severe nuisance by creating excessive noise, vandalizing common property or harassing others. They make living in peace impossible. Strata corporations struggle with such owners because the process for enforcing the bylaws through the courts is lengthy and expensive.
How the courts have dealt with nightmare neighbour situations has been receiving increased media attention in recent years with courts granting injunctions and even forcing owners to sell their units. Lesperance Mendes recently won another a widely reported and precedent setting case in which the court imposed strict injunctions against an owner and his partner because they were found to have caused an unacceptable nuisance.
Notwithstanding the increased attention these cases have been getting, the bar for forcing an owner out of a strata is very high in BC. The court will only force owners to sell their strata lots if the owner has already breached a court order to obey the bylaws and there are no less draconian remedies available (see for example: The Owners, Strata Plan LMS 2768 v. Jordison, 2013 BCCA 484 and The Owners, Strata Plan VR 390 v. Harvey, 2013 BCSC 2293).
In this writer’s view, the Strata Property Act should be amended to be consistent with other jurisdictions where strata corporations can force the sale of strata lots in the first instance when an owner fails to demonstrate an ability or willingness to live within the framework of rules required to ensure peace within their strata community.
However, until the provincial government amends the law, a necessary first step in forcing a nightmare neighbour out of a strata is to apply to the Supreme Court of BC for injunctive orders. So how can a strata corporation, property managers and owners prepare the evidence in a manner that maximizes its chances for success while minimizing the strata corporation’s legal costs? Here are some tips:
Tip 1: Document Everything
This is perhaps the single most important thing a strata corporation can do. Injunctive orders are sought by way of Petition, which means that evidence is submitted through sworn written statements, called affidavits. Cases are typically decided on the basis of these affidavits and the documents attached to them as exhibits.
Preparing the affidavit evidence is often the most time intensive and expensive aspect of preparing a Petition. This is particularly the case if the nuisance has a long history or there are many potential witnesses in the building being affected. In the absence of a clear record of complaints, lawyers must spend a great deal of time interviewing witnesses to try to piece together a chronology of complaints. That can be costly.
Basing evidence purely from memory is also not ideal from an evidentiary standpoint. Affidavit evidence based solely on memory may be less detailed, less credible and more easily rebutted than evidence that is corroborated with a contemporaneous record.
Owners should be encouraged to keep diaries or save correspondence that documents their complaints in as much detail as possible including:
- What happened?
- When and where did the incident happen?
- What time did each nuisance occur and when did it stop?
- How did the nuisance or harassment make the owner feel? Angry? Intimidated?
- How did the owner respond to the nuisance?
- Have they taken any steps to avoid the neighbour causing the nuisance or minimize the effect of the nuisance? If so, how effective have those steps been?
The owners should also be asked for copies of any pictures, video or audio recording of the nuisance. For example, if your nightmare owner vandalized common property, take a picture. If they are screaming in the middle of the night, create an audio recording.
Property managers must also play a role in documenting complaints by keeping the following records on behalf of the strata:
- All written complaints regarding breaches of the bylaws;
- Written notices to the owner detailing the complaints, including the date and time of the alleged bylaw infractions and giving the owner an opportunity to respond;
- Minutes of the council’s decision regarding the complaints; and
- The letter to the owner that sets out the council’s decision regarding the infraction.
Keep all of these records in one place so that they are easy to find and organized when your lawyer requests them.
Tip 2: Enforce the Bylaws
The primary methods of bylaw enforcement under the Strata Property Act are warnings and fines. These should be tried before injunctions or forced sales are sought. The court may be hesitant to grant an injunction if the strata has not attempted less drastic means of enforcement such as warning the owner or fining them. Furthermore, sometimes these methods can be effective and allow the parties to avoid having to go to court.
Lesperance Mendes has published a helpful guide on how to respond to bylaw infraction complaints and issue fines. It is also worth noting that Strata corporations may seek an order for judgement for fines at the same time as it seeks an injunction. Following this guide will increase the chances of the strata’s claim for fines will be upheld by the court.
Tip 3: Stay Above the Fray
This is perhaps the hardest tip to follow because it is natural to want to respond to those that wrong us. However, strata corporations should be aware that in nearly every case where a strata corporation seeks an injunction against an owner for harassment, that owner claims that they are being persecuted by the strata corporation or its residents.
Such allegations, even when founded, are not necessarily fatal to a strata corporation’s case. After all, throwing dirt at others does not make anyone clean. However, if substantiated, such allegations could colour a strata’s claim or undermine the credibility of its evidence. Thus, strata corporations, property managers, councils and owners should try to respond to their nightmare owners in as reasonable and balanced manner as possible.
Remember that the Strata Property Act provisions for bylaw enforcement and governance are meant to promote fairness and impartiality.
Council must consider the responses received from the owner regarding a complaint and must give the owner a hearing if requested.
Bylaws should be applied and enforced fairly and equally to all, including the council.
Council members who are involved with the complaint should recuse themselves and leave the room before the council makes a decision regarding the complaint.
By acting fairly, impartially, avoiding conflicts and following the Strata Property Act, the strata corporation is more likely to inoculate itself against allegations of bias and persecution.
Risk and cost is unavoidable in all litigation, including petitions to seek injunctions against nightmare neighbours in stratas. However, by following the above tips, strata corporations, owners and property managers can help maximize the chance of obtaining an injunction against their resident nightmare owner and limit costs.
Strata corporations and owners should also seek legal advice early when dealing with a nightmare owner.
THIS ARTICLE IS NOT LEGAL ADVICE: This article provides general information and should not be relied on without independent legal advice.