Legally Speaking - February 2014 (468)
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Legally Speaking (468, February 2014)

 

Number 468, February 2014

YOUR HOME MAY NOT BE YOUR CASTLE

As cities expand, more people are choosing to live in collective living arrangements. The downtown core, and increasingly the suburbs, are dotted with high rise residential buildings containing hundreds of separate units and their inhabitants. But what remedies are available when one of those inhabitants disturbs the quiet enjoyment of others living in close proximity and, through their behavior, effectively decreases the value of the neighbouring units?

If the building is a rental property, the landlord has the right, under the Residential Tenancy Act, to terminate the tenancy of the offending party if it can be established that the offending party “significantly interfered with or unreasonably disturbed another occupant”1 of the building. The remedies are more complicated if the building is strata titled with each occupant owning their unit.

How does one reconcile the right of quiet enjoyment in collective living arrangements with the principle of property ownership? That issue was recently addressed in a long standing dispute between a strata owner and her son and their strata corporation.

The issue arose from the abusive and annoying behaviour of, primarily, the strata owner’s son, who lived in the unit with his mother, toward a number of neighbouring owners. The strata bylaws set out behavioral standards which were clearly not being met. Numerous meetings, warnings and fines did not change the behaviour. Finally, the strata corporation sought relief from the courts.

In January 2012, the BC Supreme Court issued an order2 requiring the offending strata owner to list the unit for sale and, until it was sold, abide by the strata corporation's rules and refrain from making loud noises or obscene gestures or uttering abusive or obscene comments to other members of the strata development or their families.

That decision was appealed and, in July 2012, the BC Court of Appeal ruled that Section 173 of the Strata Property Act was not broad enough to support a direct order to sell the unit as a result of the bad behaviour. However, the Court left open the question of whether an order for sale could be made as a remedy for failing to abide with an order of the court.3 The Court upheld that part of the order which required the offending parties to refrain from disturbing their neighbours.

In February 2013, the strata corporation returned to BC Supreme Court and argued that the continuing bad behavior of the offending residents was a breach of the court order to refrain from making loud noises, or obscene gestures or uttering any obscene or abusive comments to other members of the strata development or their families. The Court concluded that such continuing behaviour was a breach and found the offending residents to be in contempt.4 The usual penalty for contempt is either a financial penalty or an order of committal or both.

The Court concluded, in light of the offending parties’ financial circumstances, that a financial penalty would likely remain unpaid just as the Strata Corporation’s fines had remained unpaid. The Court was also reluctant to impose a jail sentence. The Court concluded that an order to sell the unit was the appropriate remedy for their contempt of the court order. Not surprisingly that order was appealed and in November 2013 the BC Court of Appeal upheld that decision requiring the unit to be sold.5

This case should be of interest to REALTORS® representing strata owners who see property values being diminished by the conduct of abusive neighbours, as well as licensees involved in property management. It illustrates that there are limits to the concept of “a person’s home is their castle” when that home is part of the collective living arrangements found in a strata property development. However, as indicated by these facts, an order of sale is the last, not first, resort of a strata corporation when dealing with problem owners.

Brian Taylor
Bull Housser LLP

  1. Residential Tenancy Act, 2002 SBC, Para. 47 (1) (d) (i).
  2. The Owners Strata Plan LMS 2768 v. Jordison 2012, BCSC 31.
  3. The Owners Strata Plan LMS 2768 v. Jordison 2012, BCCA 303.
  4. The Owners Strata plan LMS 2768 v. Jordison 2013, BCSC 487.
  5. The Owners Strata plan LMS 2768 v. Jordison 2013, BCCA 206.
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