CONDOMINIUM – Bylaws – Types – Regarding occupancy standards – Unit holder – Duties of – Adherence to bylaws and rules.

Condominium Corporation went to court for the Aquarius Mews condominium complex for an injunction against a unit owner, Newell, and others. Newell owned a penthouse unit in the condominium complex that had exclusive use of lpart of the condominium common property which included a roof deck and balcony. Newell installed a hot tub, barbeque grill and an elaborate audio visual entertainment system in this condominium common property. Newell was expressly refused approval to modify the outdoor area in this way. The condominium corporation alleged that Newell held noisy parties in his unit and the outdoor area. Neighbors complained about loud music and late parties. The condominium corporation stated that the parties and noise broke many of the condominium bylaws, and that the condo notice letters and fines levied against Newell for the breaches had

not been good at stopping these situations. As a result, the condominium corporation asked the court for an order keeping Newell and others from making noise between certain hours, prohibiting any entertainment system, speakers or musical instruments on the outdoor areas, and forcing him to remove the hot tub and air conditioning units from the deck. The condominium corporation relied on s. 173 of the Strata Property Act as the mechanism that would allow the court to make these orders. Newell defended himself stating that there were not the sort of issues going on that would make such order appropriate. He stated that his parties were of regular size and frequency and at a noise level which was consistent with the Yaletown neighborhood.

Held: The order was allowed in part. Newell breached the condominium noise bylaws on many times, Newell never argued that this was not true and the court saw his acceptance of fines and the neighbors’ evidence as proof of it. Newell’s explanation for not arguing against the notice letters due to his being away for business was not believed by the court. Yaletown being a hub for social activity was not a legitimate reason for ignoring the condominium bylaws. The hot tub and air conditioning units did not constitute an alteration to common property, as they are not permanent installations. The condominium corporation could apply back to the court if the actual physical location was a problem for the condo corporation. The condominium corporation won an order prohibiting use of the entertainment system and the hot tub on the deck between the hours of eleven at night and eight in the morning.

Strata Plan LMS 4255 v. Newell (2012) B.C.J No. 2170, British Columbia Supreme Court, E.J Adair J., October 22, 2012. Digest No. 3228 – 012

Also see the Kahane Law Weekly Minute on Noise Bylaws in the City of Calgary