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Must you disclose noisy neighbours when you sell?

Posted by Milana Cizmar on December 12, 2012

Peterborough's Anne Langdon says the basketball playing of her neighbour's teenage son is a disturbance. So, too, is the wooden panel they created at the edge of her driveway. She has taken her complaint to Ontario's environment commissioner.

Peterborough’s Anne Langdon says the basketball playing of her neighbour’s teenage son is a disturbance. So, too, is the wooden panel they created at the edge of her driveway. She has taken her complaint to Ontario’s environment commissioner.

A teenager playing basketball on his family driveway in Peterborough made national news when the neighbour complained about the noise. A backyard hockey rink can create the same amount of noise. Should a seller be required to disclose these types of situations when they sell a home?

A British study found that one of the top 10 reasons people move is because they want to get away from problem neighbours, either those who are aggressive, or those who are noisy or messy. Real estate agents say the top reasons people move in Ontario has more to do with upsizing, downsizing, getting closer to good schools, jobs or their families.

It has been demonstrated that in some cases, the nuisance caused by noise or smell can affect real estate values. In a 1983 Vancouver case, Sharon Kenney bought a condo that was above two restaurants. Before buying, she made sure that these restaurants only served light meals and no foods were cooked or deep fried. In 1987, one of the restaurants installed an exhaust fan directly below her patio.

The noise from the fan and the smell were a constant nuisance and she sold her condo as a result. It took seven months to sell and though she listed it for $119,000, she eventually dropped the price and sold it for $105,000. An appraiser gave evidence that the nuisance caused at least a $10,000 reduction in the value of her unit.

In 1990, B.C. judge Bruce Cohen ruled that the fan interfered with Kenney’s enjoyment of her condo and reduced her resale value. The judge said the test was whether the use of the land by the neighbour interfered substantially with the enjoyment of the other unit and was the interference unreasonable.

He also said that “Not every smell, whiff of smoke, sound of machinery or music will entitle the affected person to recover. It is impossible to lay down precise standards, but the invasion must be substantial and serious.”

In this case, he awarded Kenney $25,557 based on $10,000 for the loss of value of her unit, $7,500 for the gross interference with her comfort and enjoyment of her condominium and repayment of the real estate commission of $8,057 that she had to pay.

Most lawyers will tell you that neighbourhood conditions do not need to be disclosed to potential buyers. However, sellers do have to respond truthfully if you ask them direct questions.

Sellers should first try and settle things amicably. Taking the time to get to know them could lead to an effective resolution. You may also suggest a mediator to try and reach a reasonable solution. If all else fails, you can report the noise to the local bylaw enforcement department at city hall or if more serious, to the police. Suing for damages should be a last resort, but then again, no one should be forced to move because of a problem neighbour.

Buyers should walk around any neighbourhood that interests them and talk to the neighbours. Come around at different times of the day or night and see and listen for yourself. Also ask the sellers point blank if they know of any neighbourhood conditions that could affect the market value.

Being prepared in advance is the best way to avoid a problem later.

Mark Weisleder is a Toronto real estate lawyer. Contact him at [email protected]

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