A B.C. man who claimed his neighbour's air conditioner was too close to his window and was disrupting his sleep has had his complaint dismissed.
Michael Kinzie is the owner of Unit 6 in a strata townhouse development in Vernon, B.C. According to a Civil Resolution Tribunal decision issued and posted online Tuesday, the owners of the adjacent Unit 5 have a tendency to run their air conditioner overnight, and Kinzie finds the noise disruptive.
He filed a noise complaint with the strata corporation in August 2022, alleging that the air conditioner had been cycling on every 15 to 20 minutes, interrupting his sleep.
A member of the strata council "listened to the air conditioner in operation and found it was making normal noise," the decision by CRT member Micah Carmody reads.
The strata took the position that the noise was not excessive and did not violate its "quiet time" bylaw, which bans residents from creating unreasonable noise that is audible in other units between the hours of 11 p.m. and 7 a.m.
"On Nov. 3, 2022, the strata gave Mr. Kinzie its final decision to take no further action on the complaint," Carmody's decision reads. "The council’s reasons included that the air conditioner had been serviced that summer, its noise level was comparable to other units, and there had been no noise complaints from previous Unit 6 owners. The council also said it felt that air conditioning noise did not fall under the strata’s 'quiet time' noise bylaw and council 'would not tell an owner when, or for how long, they can run their A/C.'"
Kinzie took the strata to the CRT, seeking to compel it to enforce the quiet time bylaw regarding Unit 5's air conditioner.
While Carmody agreed with Kinzie that the strata council was wrong to conclude that air conditioning noise was not subject to the bylaw, the tribunal member still didn't find in the complainant's favour.
"The strata, in effect, says that if an air conditioner is maintained and does not make unusual noise, its use cannot contravene the noise bylaws, regardless of context such as its location, frequency of use, time of use, and outdoor temperature," Carmody wrote.
"While this approach is appealing in its simplicity, it is inconsistent with the bylaws, which prohibit objectively intolerable noise and require the strata to undertake a contextual evaluation."
Unfortunately for Kinzie, the contextual evaluation in his case was not enough to warrant a finding in his favour.
"I accept that Mr. Kinzie would prefer to open his bedroom window at night when the temperature permits," the decision reads. "However, Mr. Kinzie can freely use his air conditioner without risk of disturbing his neighbours because his strata lot is an end unit. In the context of this dispute, I find closing windows on hot nights when neighbours are using their air conditioner is part of the 'give and take' of living in a strata community."
Carmody concluded that Kinzie had not shown that the noise increase – professionally measured to be a single decibel with the bedroom window closed – from the air conditioner was "objectively intolerable."
However, the tribunal member noted that the strata has an ongoing obligation to enforce its bylaws.
"This decision does not mean that the strata can ignore future air conditioning noise complaints from Mr. Kinzie," Carmody wrote. "Rather than taking a blanket approach, the strata must consider any new information Mr. Kinzie provides with future complaints."
