The schedule of standard bylaws found in the Strata Property Act contains a nuisance bylaw that prohibits the use of a strata lot or common property such that causes a nuisance or hazard to another person.
Nuisance is a common issue in strata living and the word “nuisance” is a legal term.
The purpose of nuisance law is to draw a balance between the right of one party to use their land as they see fit and another party’s interest in the use and enjoyment of their land without interruption.
With nuisance, the focus is not on the nature of the conduct or proof of intent or negligence but on the nature and extent of the interference caused to another party.
The courts have defined the test for nuisance by asking whether the defendant’s use of their land unreasonably interfered with the use and enjoyment of another’s land. Where actual physical damage occurs, it is almost always an unreasonable interference. It is much harder for a court to find a nuisance where the interference results in little or damage, usually in cases involving smells, noises, vibration, or other intangible causes.
Clear as mud.
Some of the more obvious examples of a nuisance are:
- A noisy or floor i.e. hardwood;
- Smoking (any substance), smells or pollution;
- Floods emanating from another property, i.e. burst pipes
- Meth labs;
- Garbage or hording; or
There are also some more “exotic” forms of nuisance. The courts have held that the following may constitute a nuisance:
- A home being used for prostitution;
- Jumping on a trampoline while nude;
- The noise created in a home where macaws were kept and bred.
However, a nuisance is not every minor noise, odour or nude trampoline enthusiast that offends someone. The reality of life is that there is the occasional loud noise, barking dog, or a burning smell from a BBQ gone wrong. These are not grounds for nuisance. The standard to use is that of the reasonable and ordinary person.
So if you are a light sleeper or have extremely sensitive allergies, there is no protection available through the law of nuisance.
Aside from abnormal sensitivities, the location of where an alleged nuisance takes place will be considered. For example, a quiet rural cottage areas and a busy, noisy, industrial area will be held to a different standard.
So, how noisy a noise must be, how smelly a smell must be, and how annoying a nuisance must be is all relative. Again, clear as mud.
In the strata context, what can be done to avoid disputes with respect to nuisance?
Ultimately, the key is to “do unto others as you would have done unto you”. For example, if you do not want to be awoken at 5:00 a.m. to the sound of a chainsaw, then perhaps you should refrain from playing loud Norwegian death metal hits until 2:00 AM. On the other hand, people need to recognize that in life there will be some annoyances.
Strata councils can also assist by making sure that bylaws are drafted in such a manner as to avoid many nuisances. Properly drafted bylaws and fair, consistent enforcement of those bylaws will go a long way toward making people understand what is acceptable and control or minimize nuisances.
Similarly, owners must take some responsibility. Expect some noise or the occasional party occasionally. You do not rush off to court for minor breaches of the bylaws.
Bottom Line: in order to make life in strata’s tolerable, be patient and respectful.