Don’t Let Repairs Become a Nuisance
By: Audrey Loeb
One of the reasons living in a condominium can be more difficult than in a single-family home is that a resident cannot control the repair schedule when repairs need to be done.
An example of this was recently considered in an Alberta decision where the owner of a penthouse unit, that was tenanted, sued the condominium in nuisance for damages suffered due to loss of rent, which the tenant refused to pay, as a result of the interference and inconvenience caused to the tenant during the course of repairs done to the building’s roof. The work was supposed to take four months commencing at the end of July with completion in November. Instead, it started in October and took 13 months to complete.
During that year, the resident could not get adequate heat, in the winter, because the insulation had been removed from the roof, the windows were boarded up so the tenant could neither see out the windows nor access the balcony. Work started daily at 7 AM and there was drilling and banging constantly.
The unit owner brought an application for his damages against the condominium corporation. The evidence showed that when the work was to commence there were no materials on site and that there were 15 change orders. Both of these contributed to the extended length of time it took to replace the roof. No further evidence was given by the condominium to explain the delays in the completion of the work and the owner claimed that the resident had experienced nuisance as a result of the length of time the job took.
The condominium argued that it has a statutory duty to carry out repairs to the building and the complaints of nuisance made by the tenant were exaggerated. To establish nuisance, the interference with property must be both substantial and unreasonable. The court found that the condominium could not explain why there were 15 change orders or why the work took so long to complete and decided that the conduct of the corporation did constitute nuisance.
The court commented:
“I accept the Defendant’s evidence that the replacement of the roof was necessary. I also accept that there were no safe, cost-effective measures to address the complaints. I agree that condominium owners and renters must accept some interference for necessary construction that benefits all owners. The ultimate question is whether, considering all the circumstances, it is unreasonable to expect the Plaintiff to bear the interference without compensation.
In terms of why it took so much longer to complete the project than initially anticipated, the evidence does not allow me to make any conclusions. Mr. Alazar gave several reasons for the delay. However, his evidence did not provide the details on why the necessary materials were not on site when construction was slated to begin, and what change orders were made, why, and how much delay each caused. In the absence of this evidence, I can draw no conclusions as to who was responsible for the delay, if indeed any one was. It is not necessary for me to determine whether the Defendants are responsible for the delay because, even if I find the Defendants were not responsible for the delay, this does not preclude a finding of liability. The ultimate question is whether, considering all the circumstances, it is unreasonable to expect the Plaintiff to bear the interference without compensation. I conclude that it was unreasonable to expect the Plaintiff to bear the noise, loss of heat, boarded windows, and loss of the balcony without compensation.”
The judge awarded the plaintiff $25,000 in damages subject to some deductions. What this decision tells us is that condominium corporations, their managers and engineers have an obligation to do work in a timely manner and with as little ongoing major interference as possible. Failure to do so may be costly.