The owners of a strata lot applied for an injunction to stop their downstairs neighbours from smoking cigars. The owners proved that there was frequent and pervasive cigar smoke infiltrating their unit. They tried unsuccessfully to negotiate a solution and mitigate the impact, and had medical evidence that the smoke led to health problems. The Court ultimately found that the cigar smoke was a nuisance and granted the injunction to stop the neighbour from smoking in the strata lot.

The common law of nuisance allows both a strata resident and a strata corporation to seek an order restraining an occupant from smoking.

The courts of BC have adopted an objective test for nuisance, which applies the standard of how an ordinary reasonable person would view a situation. In this case, the Court approved the objective test as follows:
“in every case it is not whether the individual plaintiff suffers what he regards as substantial discomfort or inconvenience, but whether the average man who resides in that locality would take the same view of the matter.”

Regarding nuisance complaints in strata complexes, the Courts have recognized that in communal living situations, there are additional factors that must be considered when determining whether there is a nuisance. In the Karamanian case, the court found that residents of a strata complex must exhibit more respect and cooperation for each other to ensure that each can enjoy their home to the fullest. The complaining neighbours complained that the vibrations from a Jacuzzi tub interfered with their quiet enjoyment of their home. The court granted the strata corporation’s application and ordered that the Jacuzzi only be operated during specific hours of the day.

This case illustrates that strata corporations can get an order restraining a resident from creating a nuisance even in cases when there is no evidence of a medical health problem resulting from the behaviour.

Regarding the law of nuisance, many strata corporations have difficulty determining whether a specific behaviour is a nuisance. There is case law that finds that a nuisance is an unreasonable interference, regardless of whether the nuisance arises from intentional acts undertaken for lawful purposes. For instance, an industrial plant that operates lawfully, can still cause a nuisance if smoke or noise unreasonably invades the quiet enjoyment of neighbouring land owners.  

In this case, the court found:
“The test then is, has the defendant’s use of this land interfered with the use and enjoyment of the plaintiff’s land and is that interference unreasonable? Where ….actual physical damage occurs it is not difficult to decide that the interference is in fact unreasonable. Greater difficulty will be found where interference results in little or no physical injury but may give offence by reason of smells, noise, vibration or other intangible causes.”

This case illustrates how the law of nuisance tries to balance the rights of one owner with the right of another to the use and enjoyment of his or her home. Ultimately, the court can intervene when the one owner unreasonably interferes with another owner’s use of the premises.