Scott Bartos and Renata Kuhtz can look forward to a sound sleep.
Their strata corporation has been ordered to fix the noisy elevator that has been keeping them awake at night.
That’s not only what a B.C. Civil Resolution Tribunal commanded.
Tribunal member Kate Campbell also directed the strata to pay Bartos and Kuhtz a total of $11,787.73.
The amount includes $8,000 in general damages for the couple, who had to endure more than three years of excessive noise.
Bartos had claimed that the sounds sometimes wake them up at 4:30 in the morning.
Bartos and Kuhtz actually wanted $75,000 in damages, but Campbell determined that $8,000 was the “appropriate” amount.
The award also includes $3,150 to reimburse the couple for hiring BAP Acoustics to conduct sound testing.
“The owners submit that the strata’s failure to remediate the elevator noise is unreasonable, as the strata has the financial means to make the necessary repairs, and that the strata’s actions were significantly unfair to them,” Campbell related in her reasons for decision.
The strata, for its part, claimed that it has “met its duty to maintain the elevator equipment through regular servicing, and that the elevator equipment is not excessively or unreasonably noisy”.
According to Campbell, the strata also argued that the previous owners of the unit “did not complain about noise”.
Citing the evidence submitted, Campbell concluded that the elevator “creates excessive and unreasonable noise in unit 1008” that Bartos and Kuhtz purchased in the 11-storey building.
Bartos and Kuhtz moved into their unit in May 2016.
On June 20, 2016, they emailed the building concierge, and reported “banging/clanging” noises.
As Campbell noted, the strata had been aware of the problem since 2014.
Moreover, the previous owner of a neighbouring unit complained about noises in the same year.
Campbell noted that under the Strata Property Act, the strata corporation has a “duty to maintain common property and common assets, which includes the elevator equipment and control room”.
“I find the strata has failed to meet these obligations since the owners first complained about the noise in June 2016,” Campbell wrote.
She disagreed with the strata’s contention that it dealt with the noise complaint in a “timely and appropriate manner”.
“After the owners’ June 20, 2016 written complaint, the strata did not respond to them directly, but merely wrote in the July 2016 council minutes that ‘the noise from the elevator is a result from the system as designed and Council considers this matter closed,’” Campbell stated.
The tribunal member noted that the strata had received recommendations from three separate companies about repairs needed to the elevator equipment.
Campbell also recalled that even after the strata got a resolution approved during a special general meeting of owners in September 2018 to spend $53,000, no action was taken.
Campbell stated that Bartos and Kuhtz “reasonably expected not to have to endure unreasonable elevator noise, and the strata’s actions were significantly unfair because they failed to mitigate the noise”.
"The tort of nuisance in a strata setting is an unreasonable continuing or repeated interference with a person’s enjoyment and use of their strata lot, and a remedy should be made without undue delay once the respondent is aware of the nuisance," Campbell wrote.