Strata Fines Resident $25 for Smoking Creating “activities causing nuisance or hazard to others”

The only organization that should be fined for “causing nuisance … to others” should be the board of the Chelsea Gardens Strata Corporation for such a cowardly use of the by-laws.

The Chelsea Gardens Strata Corporation has been dealing with a series of complaints from a unit owner against their neighbour for smoking. It’s implied that the complaints arise mostly when the smoker is on their own patio, and the second-hand smoke drifts into the complainant’s unit. The complaints have been expressed to the corporation in 2009 and 2010, and recently they have been filed with the BC Human Rights Tribunal. It is scheduled for mediation in November 2011.

What I find interesting is the board’s response, at one point, to attempt to address the situation by fining the smoker $25 for breaking the by-laws though “activities causing nuisance or hazard to others.” The role of the board is in part to help the community live together in harmony and mediate the interaction of residents.

I can see how the board may have felt constrained – smoking is not an illegal activity, but they have a serious of complaints from an owner indicating that their health is being impaired by another resident. A $25 fine though seems ineffectual, token, and something that would cause more harm. It’s an action that seems to say to the complainant that the board is sympathetic to the complaint, but the amount of the fine indicates the response is toothless and meaningless. $25 will not pose a fiscal threat that encourages change in behaviour.

I would think that the board actually puts themselves in a more vulnerable role, especially given that smoking isn’t illegal, and they are regulating that activity. It’s a similar situation to those fatty carcinogenic plumes of bbq beef carcass smoke that fill my unit, issuing from several neighbours balconies and patios this summer.

When I buy into a condominium that allows pets, I assume that at least some of my neighbours will have pets and I will bump into them, sometimes on a daily basis. If I buy into a condominium that doesn’t outline in the by-laws a non-smoking policy on exclusive use common property (including balconies and patios), then I assume that some of my neighbours have the right to smoke there – and will take that right up.

For those that think that this comes from a smoker, I am a dedicated non-smoker. Euuugh – smoker breath.

Tenants Must Allow Access Through Their Units to Common Property (Balconies)

There is a substantial amount of condominium homeowners that have balconies as part of their unit. If they check their bylaws, with a few exceptions, that balcony doesn’t constitute part of their unit, even though the only way on – forgiving the idea of a hook, rope, and a nimble climber – is through their unit.

Balconies tend to be part of the common property – owned and directly controlled by the corporation. Just like hallways, elevators, parking lots, and the grounds, balconies are under the jurisdiction of the corporation, not the owner.

In the case of balconies where the only natural access is through the unit, most bylaws indicate that balconies, through common property, have been assigned as exclusive use to the attached unit. That means your neighbour, envious of your pine tree view of the local skid row (as example) couldn’t just come over and have a seat on the attached balcony. The balcony has been assigned as exclusive use for you. You could still invite your neighbour over, but it would be at your discretion.

As common property, the board has the right to access the balcony upon request, and make any changes to the structure or the building around it.

Two owners recently found this fact out. Bernadette Rosenstadt and Brenda Bishop of the Queens Towers condominium in North Carolina filed motion to block the corporation from accessing their units and to prevent the installation of awnings. The original case and the appeal both found the condominium has the right to access the balcony through the unit, and install awnings.

The appeals review is a really good read and the judge does a very fine job going through why the action against the condominium was denied – going through many points which are applicable if you live in North Carolina, the USA, Canada or abroad.

At the heart of the argument is the definition of the owners unit (which doesn’t include balconies), the definition of common property (which includes balconies) and therefore the right of the condominium to access and modify, as also supported by the bylaws and founding documents.

So in the end, if your corporation wants access to your balcony, you’ll need to grant them access through your unit.

Ms. Rosenstadt had been previously involved with action against her condominium (and here) corporation, and there too wasn’t all that successful in her demands.