Condo Corporation Liability For Nuisance

Is your condo corporation protected against claims in nuisance?

Condo corporations and their boards are required by law to keep the condo's common property in a state of good and serviceable repair. For an apartment-style condo, common property typically includes roofing, windows, balconies, elevators, and structural components. These items will require repairs or replacement as the building ages.

However, a recent court decision in Alberta illustrates the potential liability in nuisance faced by a condo corporation that repairs its common property in ways that interfere with occupants' use, and enjoyment of their unit. Since all repairs involve some amount of interference with a condo's occupants, this court decision deserves a closer look.

What is private nuisance?

In Canadian law, nuisance is an interference with a claimant's use or enjoyment of land that is both substantial and unreasonable. The categories of nuisance are not closed, so any sort of activity may qualify. However, nuisance is often caused by emanations from surrounding properties, such as noises or smells.

For example, the classic English case of Sturges v Bridgman involved a confectioner using pestles and mortars in his kitchen. A physician constructed a consulting room for his practice next door to the confectioner, and the loud noises caused by the confectioner's equipment interfered with the physician's medical practice. The English Court of Appeal found the confectioner's noises to be a nuisance.

The usual remedy awarded by courts when nuisance occurs is an injunction (i.e., the defendant must stop whatever is causing the nuisance)

How might a condo corporation be liable for nuisance?

Photo: The Peregrine Point high-rise condo undergoes roof repairs.

A recent case from the Alberta Court of King's Bench illustrates the risks faced by condo corporations for claims in nuisance. In Dunn v Condo Corp No 042 0105, the trial judge determined that protracted roof repairs on a high-rise condo in Edmonton resulted in a nuisance to the penthouse occupier.¹ This was a result of noise, heat loss, loss of windows, and loss of balcony that led the penthouse owner to sue the condo board for nuisance. In particular, the trial judge noted the following:

• For over a year, there was daily banging, sawing, and foot noise on the roof beginning at 7am most days;
• Heat loss for a period of about one month that was caused by the roof replacement; and
• Complete loss of access to windows and a balcony.

In its defence, the condo corporation argued that its bylaws prohibited claims in nuisance, pointing to the following bylaw:

The trial judge rejected this argument on the basis that "nuisance ... is different than damage to property or person." This case recently received approval for an appeal to the Alberta Court of Appeal, so this may not be the last we hear of this matter. In granting permission to appeal, Justice of Appeal Watson noted that the trial judge may have misinterpreted the condo's bylaw above.²

Dunn serves as a warning. Nuisance is a broad doctrine that is not always consistently applied. Very recently, the Supreme Court of the United Kingdom issued a decision that attempts to clarify the law of nuisance³ but it remains to be seen whether Canadian courts will adopt this analysis.

There are many risks to sitting on a condo board, including potential claims in nuisance. To better protect against such claims, it would be helpful for a condo's bylaws to specifically prevent actions in nuisance. More generally, risks to condo corporations and their boards evolve as the law does, so it is important to regularly review and update your condo bylaws to ensure they adequately address risk.

Footnotes

1. Dunn v Condo Corp No 042 0105, 2022 ABQB 516.

2. Dunn v Condo Corp No 042 0105, 2023 ABCA 69 at para 13.

3. Fearn v Tate Gallery, [2023] UKSC 4.