I am a realtor and just sold a condo unit two months ago to…

Question

I am a realtor and just sold a condo unit two months ago to a divorced lady who
has a three year old son and a 6 year old daughter. The kids are quite noisy
during the day and the boy cries a lot. However the lady only has these children
three days a week and the father has them the rest of the time. Apparently the
noise typically happens during the day . The Strata Management have sent a
complaint letter from the council about the lady's family creating "
unreasonable noise" and causiing a nuisance or hazard to another person etc".
What is this lady's legal rights as the home owner and what are the rights of
the children in their home regarding the noise issue? Can they be forced to sell
their home?

Tom B. · Accepted Answer

Tom Law :

Hello.

Tom Law :

I will not quote back a statute that you probably know well. But,obviously the
strata allows children. Is there a real problem with these kids? Children make
noise. What is your opinion of the facts of the situation?

Tom Law :

Tom

Customer:

Hello, Yes there is no age restriction. However as I stated the Strata have
mailed a rather strong letter saying that they will take further action- Do they
have a right to fine the owner. This is a three year old child who perhaps does
cry a lot but will get over it as he ages. Does the Human Rights act not protect
my client? Or does the Strata have the right to fine my client or possibly force
her to sell over noisy children?

Customer:

I guess I wasn't clear with the original question. I am trying to find out my
clients rights and if the Strata has any legal authority to fine or penalize my
client for noisy kids.

Tom Law :

Firstly, the Strata can only fine if there is a specific Bylaw or Rule. I assume
they are threatening based on some general clause about no undue noise?

Customer:

Yes, they are saying that there is excessive noise. As I emailed previously,
this is a three year old child. He is bound to cry and

scream. That's what kids do. So do they have a right to fine ? Is there any type
of human rights law? that my client can appeal about?

Tom Law :

There will be a dispute resolution system in the bylaws. Please advise what they
have chosen and I will do some more research.

Tom Law :

Tom

Customer:

Hi Tom,

The situation is this, and I will quote from the letter the Strata wrote to my
client "It has come to Council's attention that there has been a complaint
received with respect to excessive noise nisance as a result of children
screaming by residents in your unit.

Please not that any behaviour which causes excessive nuisance is a direct
contrevention of Strata Bylaw 3(1) which states,

3.1

A strata lot , the common property or common assets should not be used in a way
that

a causes a nuisance or a hazard to another person

causes ureasonable noise

unreasonable interferes with the rights of other persons to use and enjoy the
common property, common assest or another strata lot.

Pursuant to the Section 135(1) of the Strata Property Act, you and your tenants
are hereby given an opportunitty to answer in

writing including a heaing if you so wish, within 14 days of the date o this
letter. Should you fail to answer, Council will make such desion against you as
it...

I am aware that my client can request an arbritation which is expensive. I have
also been in contact with the Condominium Homeowners Association and am awaiting
an answer. I am just wondering if you can give me a legal opinion as to whether
the law would take into account these children's ages when the Strata is
attempting to enforce these bylaws and grant my client some leeway as these are
children that the Strata is complaining about and not responsible adults? Surely
there must be a provision unde common law, the the Human Right Act or otherwise?

Tom Law :

There could be a resident arbitration procedure where the parties nominate a
panel to arbitrate. That of course is free.

Tom Law :

My legal opinion is that the word "reasonable" prevails. I have searched for
cases and have examined the relevant statutes. Frankly, there is nothing
specifically on point that I can see. I am guessing that it is because Councils
do not take this action in most cases.

Tom Law :

All cases dealing with noise focus on whether the noise was reasonable or
unreasonable just as the Council wrote in the letter. As you know, some strata
regulate ages of residents. If children are not allowed it is not because people
do not like seeing them it is because people do not like hearing them just as
the old adage states. To complain about natural noise from a child offends the
concept of community that the Strata Property Act promotes. To fine for the
noises of children is to exclude children and therefore lower the value of the
properties of all. I know you will think twice before recommending this property
to a family with young children.

Tom Law :

So, in my opinion, they cannot do this unless they can prove that the cries of a
child are unreasonable. That is the key. For sure I would recommend responding
and even asking for a hearing before Council. All cases revolve around evidence
and what they need to know is what evidence they have that a baby crying is
unreasonable to expect. I would not like to represent Council trying to prove
this as being true. If however the parents are creating the misery that perhaps
would be a different issue but if the children are not being mistreated and the
children are just going through a phase, no argument comes to my mind to suggest
that children making noise is unreasonable.

Tom Law :

I looked across Canada and could not find a case where a child crying was the
primary concern. However, I am a general practitioner and perhaps a specialist
in Condo Law may have heard of an instance. Also, specialists may subscribe to
arbitration reports that others do not and perhaps such a matter will show up
there. Here is a link to the lawyer referral service. They provide names of
lawyers who have agreed to consult initially for free or at little cost ($25).
Be sure to ask for strata lawyers.

Tom Law :

http://www.cba.org/bc/public_media/main/lawyer_referral.aspx

Tom Law :

The Condo Association could very well be a wealth of info if this matter has
even come up. Certainly as far as I can see it has not gone to court.

Tom Law :

The test of what is reasonable and unreasonable is not about the personal
opinions of the people hearing the noise. You start with the reasonable person
who is not engaged with the matter but is aware of the facts. Then, the law
notionally asks whether that person would come to the conclusion that a child
crying, even crying a lot, is something unreasonable. The obvious question is
what has been tried to mitigate the child's discomfort for the sake of the
child. But, assuming your clients are being responsible and all reasonable steps
have been taken, I see no rational argument that a child crying is unreasonable.
And, how do you stop it reasonably.

Tom Law :

The spirit of the law and the noise cases is to protect from wanton disregard
for the peace of other residents. That is not the case on your facts. So, my
legal opinion is they cannot fine without being able to prove the unreasonable
nature of the noise and then they have to suggest a reasonable solution. "If you
do not turn down your stereo....." is a reasonable warning. "if you do not stop
your child from crying....." Is unreasonable and not supported by law in my
opinion.

Tom Law :

Yes, I would consider the Human Rights angle. Here is a link to the Human Rights
Coalition. This is a Society that promotes rights and provides support.....

Tom Law :

http://www.bchrcoalition.org/index.php

Tom Law :

I suggest them first because that actual statute does not protect on age
discrimination for children but does protect on the issue of "family status".
Again, they may have come across similar situations and they are an advocacy
group. If I was an owner, I would be concerned that my value may decrease if
this matter is not handled properly.

Tom Law :

It is ripe for public scrutiny so if advising Council I would advise to back
off. That is why I suggest an advocacy group.

Tom Law :

Finally, if they are fined, they should pay the fines and then sue in Small
Claims court for breach of contract. That at least will put the matter in front
of a judge.

Tom Law :

I hope I have assisted. I am truly interested in the matter.

Tom Law :

Tom

Customer:

Hello Tom,

Yes, you have assisted and brought up some very good points. I really appreciate
your time and efforts.

Best Regards,

Eva Roberts

I am a realtor and just sold a condo unit two months ago to…

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