Strata Alert: Lesperance Mendes Obtains Injunction Against Noisy Condo Owner

Strata Alert: Lesperance Mendes Obtains Injunction Against Noisy Condo Owner
The Owners, Strata Plan LMS 4255 v. Newell, 2012 BCSC 1542

As reported on Global TV and CBC, Lesperance Mendes has obtained an injunction shutting down loud parties on limited common property and an owner’s right to use a patio hot tub after 11:00 p.m. With this case, our firm has set another important precedent on dealing with noise complaints, building on an earlier injunction we obtained for other strata (VR 2000 v. Grabarczyk).

The owner, in this case, lived in a high-end building located in Yaletown. Curiously, this was the respondent’s second time owning a unit in the building. He bought his first penthouse unit in 2003 and quickly established a reputation for himself as a loud late night partier. The strata corporation fined the respondent for the noise breaches and he dutifully paid all the fines. He sold his first unit in 2004 and then bought another penthouse unit in 2009.

The owner sought permission to make extensive renovations to his new unit, including the installation of a hot tub on his limited common property roof-top deck. The strata corporation, mindful of the owner’s history, declined permission for the hot tub. Undaunted, the owner went ahead anyway and used a crane to hoist the hot tub up to the 37^th floor. He also installed a high-end sound system on the deck. According to the owner’s evidence, he spent $800,000 on the renovations.

In 2010, the renovations were complete and the owner moved in; that is when the trouble began. The neighbors began complaining of loud parties well into the night. The strata corporation obtained evidence from other owners, including occupants of the adjacent tower across the courtyard, who testified that they could see and hear the “goings on” at the respondent’s parties.

The strata corporation took the position that (a) the hot tub and other items on the deck were unauthorized alterations that should be removed, and (b) the noise constituted clear breaches of the strata corporation’s bylaws.

The respondent took the position that his renovations were not alterations within the meaning of the bylaw. He also argued that the complainants were overly sensitive to noise, and they should expect to hear such noises in trendy, urban Yaletown. He also argued that an injunction should not be granted where the noise is not “continuous”.

The court refused to label the installation of the hot tub and the sound system as “alterations” within the meaning of the bylaws because those installations were not permanent in nature. However, the court agreed that the owner had breached the strata’s bylaws on 13 occasions in less than 2 years. The court issued an injunction prohibiting the owner and his guests from using a sound system and the hot tub on the roof-top deck or his balcony during the strata’s quiet hours of 11:00 p.m. to 8:00 a.m.

This case underscores the importance of obtaining solid evidence when going to the court for injunctive relief. It also clarifies that the installation of items such as hot tubs and sound systems on LCP will not be considered alterations unless those installations are of a permanent nature. Strata corporations wishing to reduce the risk of late night patio parties should consider amending their bylaws to prohibit the installation of hot tubs and sound systems on patios and decks, and to impose a “quiet time” after 11:00 p.m.

Read the full reasons for judgment The Owners, Strata Plan LMS 4255 v. Newell, 2012 BCSC 1542.

Read media reports about this case: www.cbc.ca: Loud Music Turned Down.www.globaltvbc.com: Party Penthouse Squashed

WHAT WE DO: Lesperance Mendes advises property managers, strata corporations and owners on all matters of bylaw enforcement. Our lawyers have successfully obtained injunctions against noisy owners and successfully removed troublesome owners from ownership using procedures under the Court Order Enforcement Act. For more information about our strata law practice, visit our strata law page https://lmlaw.ca/Strata-Law/ or contact Paul G. Mendes at 604-685-4894 or pgm@lmlaw.ca.