NO EASY SOLUTION TO STAMP OUT SMOKING ON DECK
Q I am living in a duplex condo environment. We do not have fenced-in backyards, but rather a deck attached to our back door. The decks between the two condo duplex units are approximately 30 to 40 feet apart. Recently my new neighbours moved in. Both are smokers, and I am not. They smoke on their deck, which I understand to be common property. The smoke is coming into my home through my open windows. I have had to close the windows, as the smoke is offensive to me and I have allergies. I have reviewed our bylaws and nowhere does it have a non-smoking policy section. However, a specific section says “Duties of Owners ... Use and enjoy the Common Property in such a manner so as to not unreasonably interfere with the use and enjoyment thereof by other Owners or Occupants or their families or visitors.”
I have communicated with the management company about this specific section of the bylaws. The management company responded, indicating “... the wording is very vague and nowhere does it specifically refer to smoking. As there is no smoking bylaw at your condo, (which is to say there is no wording for smoking not to be allowed) we, and the board, are suggesting that you try and work this out with the owners of the unit next to you.” As I see it, my neighbours are unreasonably interfering with the use and enjoyment of my own home and I think the board should approach my neighbours about the smoking and not me. Should I push further with the board or
just bite the bullet and perhaps put a wedge between me and my new neighbours?
A This is a difficult question. First, I think the section in your bylaws you referenced is too broad to include smoking. You may want to hire a lawyer to give you a specific legal opinion on that issue. If the bylaws do in fact give you some leverage, you will need to bring an application in court and force the condominium corporation to take steps to prevent the smoking nuisance. Another idea is to determine whether or not there is any interest among your fellow owners to amend your bylaws to make it abundantly clear that smoking is not permitted anywhere on the common property. That may be an easier option for you. Finally, from experience, I just do not believe talking to your neighbour directly will solve your problem.
Helpful Hint: Neighbour disputes are tough to deal with in a condominium complex. Property management companies and boards just do not have the wherewithal to deal with these types of disputes. There is nothing in the Condominium Property Act that gives you a quick answer to neighbour disputes. However, with the creation of a dispute resolution board for condominiums in the future, these types of disputes may be dealt with in a more productive and efficient way. Q I own a condominium unit that I rent out. Recently, the condo board alleged that my tenants had left some forbidden items on the balcony, and that letters had been mailed to both my tenants and myself. However, I did not receive a letter about this, and the first notice I got about the problem was a statement from the condo board regarding the fine and late payment charge. When I asked my tenants about it, they said that they had not received any complaint letters either. I then wrote to the condo board
to ask them to reverse the charges, but the board refused. I am willing to submit a statutory declaration to support my request. Do I have any recourse?
A The short answer to your question is “maybe.” First, you should review your bylaws to determine whether or not the condominium corporation has the authority to issue a fine. Fines can only be issued if the condominium corporation has the power to do so under its bylaws. Assuming that the condominium corporation has the power to issue a fine, then you should review the nature in which notice of the letters were sent to you. Ask the property manager to provide you with proof that the letters were in fact sent. If you are still not happy with the answer, you may have to challenge this issue in court.
Helpful Hint: Property management companies are entitled to send notices or letters to owners and/or tenants. This is why it is so important that you keep your information up-to-date so that property managers send the information to the correct address. If there are any issues as to notice, then the property management company should always be ready to provide proof of notice. Q I had a water blockage in my sink and hired a plumber, who put a snake down the pipe and removed the blockage. His snake was 25 feet long and used a good portion before he hit the blockage, but length unknown. I submitted the bill to the corporation as Part II “Duties of the Corporation C) iii) states ‘repairing or replacing any pipes, wires, cables, ducts, etc., unless such items are solely for the enjoyment of one apartment home.” Our manager replied that the blockage has to be at least 20 feet before the corporation would pay the bill. Can the manager or anybody else put interpretations like this to the bylaws?
A It is an odd reply, but I would be interested in knowing how the property manager uses the threshold of 20 feet as a determining factor. I would take a look at your condominium plan which is registered at the Land Titles Office and determine what is or is not common property. If the pipes are common property (which I assume they are), it would be the responsibility of the condominium corporation to address this. The only thing that I am puzzled with, however, is the fact that you dealt with it yourself as opposed to asking the corporation to deal with it.
Helpful Hint: The condominium plan sets out what is or is not common property. If something is common property and there is nothing in the bylaws that delegates the power or the responsibility to the owners, then it will be the corporation’s responsibility to deal with it.