What can a landlord do to a tenant that is making too much noise and is disturbing other tenants? Many landlords will try to speak with the tenant who is being accused of being noisy and ask them to keep it down. Sometimes this works. Other times, no matter how much effort a landlord puts into trying to get the noisy tenant to be reasonable, they simply will not change their ways.
The noisy tenant can be a real problem to a landlord. Other tenants will begin to complain to the landlord and they will start to demand action. If nothing happens, some of these tenants will file an application against the landlord for an abatement of rent (return of rent money), and some will look to terminate their tenancies and move out. The risk to the landlord is that one noisy tenant can drive out good quality tenants. The result of which is vacant units, decreased rental income, and higher expenses in preparing a unit for a new tenant (from painting, to advertising to commissions!).
The legal way to deal with a noisy tenant is to serve that tenant with a Form N5 as provided by the Ontario Landlord and Tenant Board. The Form N5 is a Notice of Termination of tenancy. In the situation of a noisy tenant, the appropriate boxes on the form are ticked off on the basis of the tenant substantially interfering with the reasonable enjoyment of the premises by other tenants, the landlord, or the landlord's employees.
Note that the Form N5 requires certain dates to entered as well as details of the allegations. Note that the law behind these requirements is highly technical and complicated. It is worth reviewing the Residential Tenancies Act as well as the notes on the Form itself and the guide and brochures available on the Landlord and Tenant Board website. Failure to strictly comply with the legal requirements will likely result in the Form N5 being declared void by the adjudicator and hence you will have to start all over again.
When serving a first N5, the termination date must be at least 20 days from the date of service. Presuming you hand the N5 to the tenant, or place it in their mailbox, the termination date in the notice must be at least 20 days after the date of service. No matter how absurd it might seem, if you fail to provide the proper number of days, the Landlord and Tenant Board will dismiss your case and you will have to start all over again.
Another highly technical part of the Notice is the section in which you have to write the details of what is happening. The details section is the Who, What, Where, Why, When, section. The Divisional Court has made it mandatory that this section provide sufficient detail for the tenant to know exactly what they are accused of. In most cases this will require the provision of dates and times of the alleged incidents. Failure to provide sufficient detail is also a reason for your N5 to be declared void.
After service of an N5, the tenant has 7 days to correct the behaviour--or cease the behaviour complained of. If the tenant stops the offending behaviour and nothing happens in the seven days following the service of the N5, this Notice of Termination becomes void and the tenant gets to stay in the apartment.
However, if the tenant does not stop the behaviour in the seven days following the service of the N5 the landlord may then file an application to the Landlord and Tenant Board in form L2. The filing of this form will lead to the issuance of a Notice of Hearing and the scheduling of a hearing date. After serving the tenant with this Notice of Hearing and the application, the landlord has to get ready to prove the case, against the tenant, on a balance of probabilities.
Proving a case is not easy. If the complaints are about music, banging, or anything similar, the landlord has to bring witnesses to the hearing who are able to testify about the event state what happened. These witnesses will also have to explain how the noise impacted them (i.e. couldn't sleep, couldn't hear my television, couldn't have friends over etc.). It is not enough to bring written complaint letters or even an affidavit.
If the landlord is able to prove the allegations in the N5 the adjudicator hearing the case will determine whether eviction is warranted under the circumstances. The adjudicator will consider whether the noise complained of is a substantial interference (as opposed to a regular noise) and whether termination of the tenancy and eviction is necessary under the circumstances. Also, the adjudicator may be persuaded by a tenant to exercise his discretion to maintain the tenancy on terms (i.e. order the tenant to be good and not bother other tenants for a fixed period of time).
Where the case is proven and the adjudicator decides that it would be unfair to deny the eviction, the Landlord and Tenant Board will issue an Order terminating the tenancy and eviction the tenant. The Board will provide a new termination date and the tenant will be required to move out of the apartment by that date. If the tenant refuses to move, the landlord will have no choice but to file the eviction Order with the Sheriff at the Court Enforcement Office in the local Courthouse. The Sheriff will give the tenant a few more days to move out and then will attend to remove the tenant and turn possession of the apartment over to the landlord.
The foregoing describes the N5 process, for a noisy tenant, where the first N5 was not voided. What about those situation where the N5 was voided by compliance within the 7 days following service of the Notice of Termination? I will write about that another day if there is a comment requesting that information. In short, if the first N5 has been voided, and it is within six months of the first N5, then the landlord will serve a second N5 (to other Notice of Termination). This second notice is not voidable, has shorter notice periods, and allows the landlord to apply to the Board immediately. At that hearing the burden of proof remains on the landlord and the landlord will have to prove the allegations in both the first and second N5 in order to win a termination of the tenancy.
For more information consider contacting a lawyer who practices in the area of residential tenancies law. While the Landlord and Tenant Board website gives the impression that the process is user friendly and that all you have to do is show up and tell your story--the reality is that residential tenancies law is highly technical and not for the novice landlord to dabble in. Landlord and Tenant Board hearings are adversarial processes that require the landlord to prove that the tenant be evicted from his home. Given the seriousness of what is being requested you may appreciate that such orders are not easily obtained.
Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
310 O'Connor Street, Ottawa, Ontario K2P 1V8