Legal

September 3, 2024 Published by South Alberta Chapter - By Dana Hagg

Alberta Court Finds That Thin Walls, Lounge Noise A “Reasonably Expected” Part Of Condo Life

From the Summer 2024 issue of the CCI South Alberta CCI Review

The Alberta Court of King’s Bench has once again confirmed that condo unit owners must put up with the charming quirks of condominium living. Or rather, the “reasonably expected” quirks.

In the Edmonton case of Aubin v Condominium Plan No 862 2917, 2024 ABKB 156, the unit owner shared a wall with the condo’s lounge. The walls were thin, so noise from the lounge entered her apartment. This had, of course, always been the case. The building was designed and built that way.

Nonetheless, the unit owner applied to the Alberta Court of King’s Bench under section 67 of the Condominium Property Act, alleging that the condominium had engaged in “improper conduct” by failing to meet its obligations under section 37 of that Act, namely, by failing to “keep in a state of good and serviceable repair and properly maintain the real and personal property of the corporation, the common property and managed property.”

As noted by John M McDougall in a 2018 publication for the Legal Education Society of Alberta, the condo board usually owes a duty to investigate noise complaints by unit owners (cited at para 64). Thus, in Aubin, half of the condo board members attended the unit owner’s apartment to investigate the sound ingress. Although the thin walls did not comply with the current Alberta Building Code, the condo board came to the conclusion that they simply did not have enough money to perform non-emergency Code upgrades or other capital improvements. Like many condos, this one was fighting financial battles on more than one front, with dwindling funds and soaring construction costs.

The condo board responded in every way that it could, or at least, that it could do without any major expenditure: by shortening the lounge’s operating hours to 11 PM, by posting a sign with the 11 PM closing time, by instructing security to check the lounge at closing time, by rearranging furniture in the lounge away from her unit wall, by instructing staff not to clean the lounge at certain times, by increasing the security deposit for owners to use the lounge, and by acknowledging that Aubin could make necessary improvements to the walls in her own unit. The board even offered to add 5/8” drywall to the existing drywall on the lounge side.

The unit owner was not satisfied. She felt that the board owed a legal duty to hire an acoustic engineer, as she eventually did. She said that the noise from the lounge was severely impacting her mental health.

Justice Mandziuk of the Court of King’s Bench of Alberta was not persuaded. He started his judgment by citing his Calgary colleague, Justice Armstrong, who discussed the minor vexations of condo life in paragraph 1 of his October 2023 decision, Spicer v Condominium Corp 041156, 2023 ABKB 611:

[1] Condominium living offers a unique blend of individual home ownership and shared responsibility. While sharing common spaces and living in close quarters may evoke a sense of community among residents, it can also result in conflict.

In Spicer, owners of a top-floor Canmore condominium unit applied under the same statutory provision – section 67 of the Condominium Property Act – to prohibit their downstairs neighbour from using her barbeque grill on her balcony. They complained that the wafting smoke and smells were a nuisance and a health hazard. Justice Armstrong was not persuaded. You can read HMC Lawyers LLP’s full summary of the case, Licence To Grill: Applicant Roasted in Condominium Balcony Barbeque Dispute, in the Winter 2024 issue of the CCI South Alberta CCI Review and on CCI South Alberta’s website.

Justice Mandziuk continued in Aubin to assess whether the condo board’s conduct was “improper”, within the meaning of section 67 of the Condominium Property Act by applying a two-part test. Step one of the test asks whether the unit owner’s expectations were “reasonable.” Step two asks whether the condo board’s conduct was “oppressive”, “unfairly prejudicial”, or whether it “unfairly disregards the interests of the complainant.”

Naturally, the walls had always been thin. This became relevant under step one, where Justice Mandziuk found that “some noise is and was to be reasonably expected” in purchasing the unit next to the lounge. There was insufficient evidence that her distress or the lounge noise amounted to a health and safety risk. The evidence showed that the board “thought about the problem in the context of managing a large property with many owners.” The board “determined in their judgment that it would be improvident to investigate further by hiring an acoustic expert, which would deplete funds belonging to all owners for the benefit of one owner.” Under the condo plans, the unit owner was responsible for the drywall in her unit (this is the default under the Condominium Property Act)...

In refusing to pay for the improvements, the board also relied on the most recent reserve fund study, noting that “reconstruction or redesign of the Lounge wall was contemplated or advised in that report for the foreseeable future.”

Upgrading the thin walls – which had always been there – simply was not in the budget. The condo board simply had to do what was “reasonable in managing the affairs of a sizable complex.”

Under step two of the “improper conduct” test, Justice Mandziuk found that the condo board had treated the unit owner fairly:

[71] …They did not treat her inequitably vis-àvis similarly situated unit owners. They did not single her out, show bias, or behave inequitably. They received a complaint and took reasonable steps to deal with it, bearing in mind their need to manage the affairs of a complex comprising several hundred units. The standard for improper conduct is a high one and it is not rooted in the subjective beliefs or sensitivities of individual owners.

In other words, this unit owner was too sensitive. Based on the evidence before the Court, Justice Mandziuk concluded that the unit owner was not entitled to demand an exceptional capital improvement to repair a problem that was apparent – or at least, should have been apparent – when she purchased her condo unit.

Read the full decision for free online at CanLII: https://canlii.ca/t/k3hqx

Dana Hagg
HMC lawyers LLP