B.C. townhouse owner challenges $8,200 in fines for vacuuming patio

A shop vacuum is seen in this stock image. (Credit: Shutterstock)

A townhouse owner who was fined $8,200 for breaching a noise bylaw by regularly vacuuming his patio and terrace has won his fight with the managers of the complex – for now.

Yi-Fei Hu challenged $8,200 in fines, claiming they were invalid because the repeated complaints from his neighbours were not properly investigated and the noise from the shop vacuum was not demonstrably unreasonable, the tribunal’s decision said.

The complex Hu lives in comprises ground-level, two-storey townhomes as well as an adjacent 10-storey building. The first complaint came from a neighbour living on the sixth floor of the building, whose unit looks down on Hu’s townhouse.

Over the next three weeks, an additional five complaints were submitted – all alleging that Hu used the vacuum “almost daily, sometimes for several hours,” according to the decision.

Complaints continued to come in over the next year, resulting in warning letters and ultimately the imposition of fines for breaching the bylaw by creating a nuisance by making unreasonable noise.

The law, tribunal member J. Garth Cambrey explained, defines a nuisance as an “unreasonable interference with an owner’s use and enjoyment of their property” that would be “intolerable to an ordinary person.” The decision noted that “subjective” complaints from neighbours aren’t enough to prove that a noise is unreasonable.

The strata council, which manages the common assets of the complex, has an obligation to conduct a reasonable investigation into complaints, Cambrey said, finding that obligation was not met in this case.

“I acknowledge that Mr. Hu appears to have used his vacuum for extended periods over several days to keep his (limited common property) patio and terrace clean,” he wrote.

“However, the evidence suggests that the strata did not conduct any inspections of the patio or terrace to determine whether the noise was unreasonable.”

To adequately prove the noise was unreasonable, evidence like decibel recordings or a report from an expert would have been required, according to the decision.

“I find the actual noise level of the vacuum is unproven,” Gombrey wrote.

“To be clear, I do not find the vacuum noise is reasonable. My finding is that the strata did not prove with sufficient evidence that the noise is unreasonable. The strata’s duty to enforce it bylaws is ongoing, so my decision should not be interpreted to approve Mr. Hu’s use of his vacuum to clean the patio and terrace without limitation.”

The strata filed a counterclaim seeking, in part, an order that Hu’s vacuuming be restricted to five minutes a day, between the hours of 10 a.m. and 5 p.m. Given that the tribunal found the bylaw breaches were unproven, Cambrey declined to grant the order.

In addition to reversing the bylaw fines, the strata was ordered to pay Hu $225 in tribunal fees.