Court order one way to fight neighbour’s cooking odours

For the last year, I have experienced extreme odours from the condo unit of my neighbour. Management has requested that he close his door and turn on his kitchen fan when cooking. The condo corporation, after a review, increased the exchange capacity of air units servicing the corridors. Yet the terrible odours continue. What can I do?

The odours constitute a nuisance. You might consider a court application to request an order that your neighbour end the nuisance. The condominium’s declaration, or rules, might prohibit a nuisance that interferes with another resident’s use or enjoyment of their unit.

A condo corporation is required to enforce the Condominium Act, and also the corporation’s declaration, bylaws and rules. If it fails to do so, a court application could be made under Section 134 of the Act, requesting that the corporation be ordered to fulfil its obligation to take steps to end the prohibited nuisance.

The weather stripping and seal on our sliding patio door is worn and missing. The board has refused to replace the door, stating that it is our responsibility under Section 98 of the Condominium Act. But lately, the board has said it will replace the door at our expense. Is the board not obligated to replace the door at the corporation’s expense?

Section 98 of the Condominium Act, 1998, deals with additions, alterations or improvements to the common elements by a unit owner. The board’s reference to Section 98 indicates that you — or an earlier owner — installed the door as an addition or improvement to the common elements. The Act requires that an agreement relating to a common element alteration be registered on title to the owner’s unit. That agreement likely provides the unit owner will be responsible for maintaining, repairing or replacing elements of the alteration — the door. In that event, replacement of the door is your responsibility.

The elevators in my 30-storey building regularly break down. I have argued that since the corporation is unable to manage the maintenance of the elevators, our monthly common expense contributions should be reduced. The corporation has refused and blames delays on the upcoming passage of the provincial Reliable Elevators Act, 2017. Is that reasonable?

The corporation is correct to refuse to decrease the owners’ common expense contributions. However, the corporation is responsible for maintaining and repairing the elevators. That responsibility will not be affected by the Reliable Elevators Act, 2017, and the corporation is not entitled to delay elevator maintenance and repairs.

The Act is presently found in Bill 109, which has not yet received Royal Assent. The Act will provide that a building with seven or more storeys must have enough elevator capacity, and that maintenance contracts are subject to the protections of the Consumer Protection Act, 2002. It will also state that elevators must be repaired within 14 days for most buildings. Lawyer Gerry Hyman is a former president of the Canadian Condominium Institute and author of Condominium Handbook. Send questions to gerry@gerryhyman.com or fax to his attention at 416-449-7071.