Haunted by humming, B.C. man resorts to court to fight irritating noise

Scoring a victory for every sensitive soul who's ever been told they're imagining an irritating noise, a Burnaby man has been awarded $1,500 after accusing his strata council of failing to investigate his repeated complaints about a neighbour's air conditioner.

B.C.'s Civil Resolution Tribunal sided with Andu Tollasepp in a small claims case highlighting nuisance noises and the perils of proximity — an issue that's become acute with people stuck in their homes because of the threat of COVID-19.

According to the decision, Tollasepp sent his strata 33 complaints about the insidious sounds he claimed were coming from the renter living in the suite above his first floor apartment.

He described "one type of sound as the low-frequency or bass sounds from music, and the other as a more continuous 'droning' noise from an air conditioner," wrote tribunal member Micah Carmody.

"[Tollasepp] says when the noise is present, he is unable to read or watch television. He says on numerous occasions he has had to leave his strata lot and return hours later to avoid the noise. He also says the air conditioner's droning noise causes him a sense of uneasiness."

Noise best heard through 'earbuds'

In strata housing, condo owners have title to their individual lots but collectively own the common property and common assets of a building. More than 1.5 million British Columbians live in strata housing, their lives governed by sets of rules policed by a strata council.

Tollasepp went to the tribunal — a kind of small claims court — looking for an order that the strata enforce its noise bylaws against the owner or renter and damages for what he claimed was "nuisance and negligence" caused by a failure to shield him from the droning.

The complaints spanned a period of little more than a year, starting in November 2018. Tollasepp attached time and date-stamped audio and video recordings of the noise, which he claimed reached as high as 70 decibels at times.

But several of the council members said they couldn't make out what Tollasepp was hearing.

"[Tollasepp] says his recordings must be listened to with "earbuds" that have been sealed to the ear because lower-quality speakers will not reproduce the lower end audio frequencies required," Carmody wrote.

"He repeatedly gave these instructions to the property manager and to strata council."

'A very slight humming'

The strata council wrote to the owner, who produced a letter from the renter, who acknowledged having poor hearing, but said he played video games on his computer with headphones on.

The building manager, who is also the strata council's vice-president, said she visited both Tollasepp's suite — 107 — and the suite above him.

"She could not hear any noise out of the ordinary. She noticed a 'very slight humming' and was unsure if it was coming from [Tollasepp's] fridge or somewhere else," Carmody wrote.

"She visited unit 207 and noticed a free-standing air conditioner in the living room close to the patio door. There was stack of blankets under the air conditioner. The tenant placed some ceramic tiles under the air conditioner at [Tollasepp's] request. He continued to complain."

'Completely preoccupied'

The situation isn't the first time the noise from an air conditioner has sparked a disagreement that's wound up in a protracted legal battle. 

Carmody cited a 2009 B.C. Supreme Court case in which a Coquitlam couple claimed their neighbour's air conditioner, placed directly opposite their master bedroom, was literally driving them around the bend.

A physician testified to the agony one of the pair experienced after becoming "completely preoccupied" with a unit described as sounding like something between a kitchen fan and a table saw.

"He diagnosed a chronic stress disorder manifested by depression and anxiety, with poor sleep, agitation, tiredness, tremors, irritability, lack of enjoyment of her usual pleasures, including her home, a sense of helplessness and hopelessness, anger that her hopefully happy retirement in her home has been made impossible, frustration and decreased energy," the decision says.

The judge in that case ordered the neighbours not to operate their air conditioner at levels above those outlined as an "annoyance" by the World Health Organization.

Carmody used the same set of guidelines to reach the conclusion that the noise coming from the suite above Tollasepp was unreasonable. 

He also found that any future noise investigations should involve two or more people attending the unit while the noise is occurring and may also need to include a sound-testing professional.

Tollasepp was looking for $5,000 in damages, but given that the air conditioner was only used seasonally, Carmody awarded him $1,500 instead.