730 V O L . 7 5 P A R T 5 S E P T E M B E R 2 0 1 7 THE ADVOCATE
• An owner’s late-night pastime of playing an electric guitar results
in the person in the unit below being unable to fall asleep at night
and unable to wake up for his early-morning nursing shift, leading
him to demand that the neighbour sell her guitar.
The owner who is bothered by the behaviour of the other resident in the
complex often demands that the strata corporation stop the other resident
from continuing with the behaviour that they say they cannot tolerate.
Councils are often asked to enforce bylaws that prohibit nuisance, including
bylaw 3(1) from the Schedule of Standard Bylaws from the Strata Property
Act,1 which reads as follows:
Use of Property
3 (1) An owner, tenant, occupant or visitor must not use a strata lot, the
common property or common assets in a way that
(a) causes a nuisance or hazard to another person,
(b) causes unreasonable noise,
(c) unreasonably interferes with the rights of other persons to use
and enjoy the common property, common assets or another
(d) is illegal, or
(e) is contrary to a purpose for which the strata lot or common property
is intended as shown expressly or by necessary implication
on or by the strata plan.
Sometimes, strata corporations enact further bylaws, such as bylaws that
prohibit smoking anywhere in the complex. The problem is that bylaws do
not enforce themselves, so council still must deal with the issue. Although
councils have a legal obligation to reasonably enforce bylaws, council members
are often reluctant to do so in nuisance matters. Enforcing nuisance
bylaws often involves council members performing an independent investigation
of the interference one owner is experiencing, including being on
call to smell smoke or hear noise at different hours of the day and night.
Enforcing nuisance bylaws involves standing in judgment of your neighbours
and their behaviours. This is often difficult for council members who
generally have no special training. Also, council members may live in the
complex or have friendships with the individuals involved. Typically, to
change a resident’s behaviour, more is involved than simply following the
bylaw enforcement procedure set out in s. 135 of the Strata Property Act and
issuing a fine.
The owner complaining of nuisance is often dissatisfied with council’s
efforts to enforce the bylaws. The legal options considered often include