Multi-Unit Occupancy: How Much Noise is Too Much Noise?
Story by: Cohen Highley LLP
A common complaint of condominium residents and apartment tenants is about excessive noise caused by occupants of neighbouring units. Like residential landlords, a condo corporation has a positive legal duty to investigate such complaints and take action if the noise is excessive. Some residents are overly sensitive to ambient noise, whereas others may be indifferent to excessive noise levels. What if the condo board or landlord investigates the noise issues and decides not to take action? A misstep by the board or landlord will be costly.
Consider for instance the now infamous litigation between Ms. Dyke and Metropolitan Toronto Condominium Corporation No. 972 (2013). After several years of complaints, Ms. Dyke applied for damages against the corporation because of the excessive noise caused by a dance studio operating out of a unit located directly above her. The court found that Ms. Dyke was entitled “to live underneath a residential apartment unit and not underneath a professional dance studio”. The corporation’s rules prohibited noise transmission if it causes an annoyance or disruption. The corporation was ordered to pay Ms. Dyke her out-of-pocket expenses of over $40,000 and legal costs of nearly $20,000. This case is a precedent for condominium corporations and residents, that a failure to address valid noise complaints will attract legal liability including damages.
Residential landlords are in the same position as condominium boards when it comes to noise issues, except that the legal duties are imposed by the Residential Tenancies Act rather than condominium rules (unless the tenancy is also in a condominium unit). The same legal duty to investigate and take action that applies in condos applies to apartments, although the legal process may be different.
But back to Ms. Dyke: the dance studio subsequently moved out of the condominium building and the unit was once again being used for residential purposes. Problem solved? Not! Earlier this year, Ms. Dyke was back before the Superior Court with complaints of excessive noise from above. This time, however, the court refused to find in favour of Ms. Dyke, stating: “…. Ms. Dyke appears to object to the occasional noises that result from ordinary residential usage. Although I do not doubt that she feels some discomfort from these sounds, what she seems to be seeking is a level of quiet to which an apartment dweller is not legally entitled”.
So, what can you take from the Dyke saga? As directors, property managers, and landlords, you have a legal duty to investigate and actively enforce compliance if there is excessive noise bothering owners or tenants. Residents are entitled to rely on their legal right to “quiet enjoyment” and the requirement that the corporation or their landlord will enforce those rights. A failure to meet the legal duties can be costly; however, some “reasonable” level of noise will be acceptable. Noise that results from ordinary residential usage ought to be expected, and condominium dwellers, while entitled to “quiet enjoyment” are not entitled to complete silence.