The noise from band and dance practices a man regularly held in the condo he was renting was “inescapable” and caused the ceiling to shake, his downstairs neighbours told a B.C. tribunal during a dispute over fines related to the reported racket.
The Civil Resolution Tribunal issued a decision on the dispute last week, finding the noise likely constituted a nuisance and the tenant “flagrantly disregarded” both the condo’s bylaws and requests that he comply with them—but stopped short of ordering the renter to pay $1,000 in noise-related fines.
Ho Ming Kong was asking the tribunal to find the penalties were levied in bad faith and in violation of B.C.’s Strata Property Act, which is the provincial legislation on how condo buildings are governed and managed.
The strata, represented by the council responsible for enforcing the bylaws, argued the noise was a nuisance and that the fines were valid.
“Nuisance is a substantial, non-trivial, and unreasonable interference with an owner’s use and enjoyment of their property,” tribunal member Peter Nyhuus explained, in his decision.
The evidence the council submitted included videos from the suite underneath Kong’s, as well as photos and statements from those who witnessed the noise. The photos showed people toting “large instruments” into the multiplex twice a week. In total, the strata council received 10 complaints about the noise over a three-month period, the tribunal’s decision said.
Kong, for his part, argued the noise was not unreasonable.
“He says the sessions always ended by 10 p.m. He says he only invited experienced dancers who know how to tread lightly as opposed to beginners who are more prone to stomping,” Nyhuus wrote.
“I find the evidence shows that his guests’ dancing skills made little difference to his neighbours below. The resident of the unit below Mr. Kong’s … says the ceiling shook when he held jazz practice and that the sound was inescapable. Other witnesses provided similar statements.”
Still, the tribunal noted the legislation outlines “strict procedural requirements” for imposing a bylaw fine.
To issue a fine after receiving a complaint, a strata council has to inform the person being fined—in writing—about the complaint and provide an opportunity to respond.
“Only after giving the tenants a reasonable opportunity to respond, and considering the tenants’ response if they gave one, can the strata send a second letter imposing a fine,” Nyhuus’ decision explained.
Further, in this case the strata would have been required to follow this two-part process following each individual noise complaint.
Because the strata only sent one letter and because it indicated the tenant was being fined for multiple violations at once, the tribunal fond proper procedure was not followed.
Kong was also fined $3,600 for using the condo’s assigned parking space to store items “including boxes, exercise equipment, a water jug, and what appears to be recycling and garbage,” the decision said.
These fines were also found to have been improperly levied.
In addition to reversing the bylaw fines, the strata was ordered to pay Kong $225 in tribunal fees.
