#16367

We have read the comment from Petard – the first question that needs to be answered “who owns the dumb waiter”?  If it is common property, and not subject to an exclusive use by-law in favour of the upstairs lot, then the Owners Corporation itself needs to repair the dumb waiter so that it doesn’t make any more noise.  If the dumb waiter is owned by the upstairs lot or is subject to an exclusive use by-law which contains a clause imposing the obligation for repair and maintenance on the owner of the upstairs lot, then the owner of the upstairs lot must be required to repair the dumb waiter so that it stops making the noise.  A further variation is that the dumb waiter may be subject to an exclusive use by-law which imposes on the Owners Corporation’s responsibility for repairing and maintenance.  If that is the case, then, once again, the Owners Corporation will be responsible for the repair and maintenance. 

 

As to obtaining an injunction, we sympathise with Chris’ approach; however it may prove somewhat problematic with injunctions generally not being available in circumstances where an applicant is seen to have agreed to work being undertaken or delayed in taking any action. 

 

This is only very general advice. You should seek specific advice prior to taking any action – or allowing the matter to continue without taking any action.