Upstairs, downstairs: condo owner sues both neighbours over noise

A year after unsuccessfully suing her downstairs neighbour for making too much noise, a B.C. woman has also failed in a bid to sue her upstairs neighbour over similar complaints.

A small claims court rejected Linda Woo's claim against upstairs neighbour Lorenzo Bruno last week — instead ordering the Burnaby woman to pay Bruno $50 recompense for "unreasonable ceiling-tapping and cupboard-slamming" she made in response to his alleged noise making.

The B.C. Civil Resolution Tribunal decision is the latest chapter in a strata saga that spans years, involving multiple complaints to both the strata council and police, who described Bruno's noises at one point as him just "going about his life."

'A particular sensitivity to noise'

In the latest round of hostilities, Woo sued Bruno for "running appliances during quiet hours, entertaining guests, stomping, dragging furniture, dropping objects,... slamming cupboards,... a motorized exercise bike and flooring creaks, knocks and pops."

Bruno countered by claiming he was the victim, and that "Woo's constant complaints to the strata and the police amount to harassment."

The latest decision was accompanied by the dismissal of a separate claim Woo filed accusing the strata council of inadequate investigation. The outcome is identical to the fate of Woo's claims last year against the strata council and downstairs neighbour Aliza Amarshi.

In that case, decision maker Kristin Gardner said she accepted that "Woo found the everyday living noises from Ms. Amarshi's unit, including talking, to be subjectively unbearable."

But she also said "the evidence leaves open the possibility that Ms. Woo has a particular sensitivity to noise, and the law of nuisance requires that an ordinary person with realistic expectations would have found the noise unreasonable."

'The test for nuisance'

More than 1.5 million British Columbians live in strata housing — an arrangement where condo owners have title to their individual lots, but own the common property and common assets of a building as a strata corporation.

The building at the centre of the dispute is one of four low-rise wooden structures comprising the strata's 285 units. Residents are required to "mitigate unreasonable noise" with "quiet times" lasting from 10 p.m. until 7 a.m on weekdays and 9 a.m on weekends and holidays.

According to the first set of decisions, Woo began complaining about Amarshi in 2017. 

"The complaints involved various knocking and banging sounds, talking, running the dishwasher and other appliances, a loud fan and a patio door slamming."

In August 2021, the strata council paid Woo $10,000 to settle a human rights tribunal claim she filed alleging discrimination; the deal released the council from claims predating that time and was supposed to "adjust the process" to deal with Woo's complaints.

The battle hit the Civil Resolution Tribunal when Amarshi sued Woo, prompting a counterclaim. Amarshi later dropped her claim, but Woo continued with her lawsuit.

At the heart of the legal battle is the question of when noise becomes a nuisance.

"The test for nuisance depends on several factors, such as its nature, severity, duration, and frequency," Gardner wrote. "The test is objective and is measured with reference to a reasonable person occupying the premises."

'Difficult, if not impossible, to detect'

According to the Amarshi decisions, Woo attempted to record alleged noise on her cellphone, asking the strata to "use earbuds to listen to the recordings or to listen to them off a cellphone because the quality is lost in an email attachment."

"The strata says that even with speakers on at full volume, the alleged noise in Ms. Woo's recordings is difficult, if not impossible, to detect," Gardner wrote. "I agree."

According to tribunal documents, the strata council had agreed to pay $1,200 for Woo to stay in a hotel for three days to run acoustical testing, but it never happened because she "was dissatisfied with various aspects of the logistics."

The strata council came up with a "hit and miss" plan to have a council member visit for a couple of hours after 10:30 p.m. on a Friday night in the hopes of hearing the noise — a proposal the decision says Woo rejected as "ridiculous."

Likewise, the tribunal member found it was impractical to have a council member "essentially be 'on call'' for Ms. Woo to contact in the middle of the night to listen to the alleged noise." 

Three strata members ultimately went to Woo's unit and the unit above "to attempt to re-create the noise transfer Ms. Woo was alleging" but were unable to verify the "degree and severity of the alleged noise."

'Some degree of give and take'

In regards to Bruno — the upstairs neighbour — the latest tribunal decisions say Woo made more than 300 complaints, mostly about "creaking, popping and knocking noises" related to his flooring.

In his defence, Bruno admitted he had used his washing machine during quiet hours shortly after moving in — once.

But he denied making a "motoring noise" and the evidence was unclear as to whether other sounds like an "abnormal snapping" or "humming noise" came from his suite or the building itself.

By contrast, tribunal member Megan Stewart found Woo admitted "tapping" on her ceiling to get Bruno's attention and submitted a recording of a call to police where she said she "poked" her ceiling and slammed her cupboard "so that he would understand."

Based on those admissions, Stewart ordered Woo to pay Bruno $50 for creating a nuisance — a finding she said she couldn't reach in regards to Woo's claims.

"Though I accept the noises Ms. Woo hears bother her, I do not agree that on an objective basis she has shown they rise to the level of negligence or nuisance," Stewart concluded.

"Living in a strata building involves some degree of give and take among neighbours when it comes to noise and other potential nuisances."