Tuesday, 23 October 2012

THE NOISY TENANT--how to evict!

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
Lawyers
Tel: 613-563-1131
www.pqtlaw.com
mthiele@pqtlaw.com

147 comments:

  1. I've spoken with a paralegal who has bee to the LTB m(with a no smoking clause) who was smoking marijuana in an apartment on an almost daily basis. The smell of it was disturbing another tenant who was pregnant. I tried to contact them about this but with no response. So I gave the N5 notice. With a date to leave at the end of June if the did not comply. The smoking continued after the 8 days. they then gave me notice of moving out at the beginning of July and would be gone at the end of July. So technically the N5 notice is void and they should have gotten my permission to break the lease. They also refused to pay July's rent. I asked this paralegal if I should take them to the LTB. She said that I would probably lose. She said the LTB would probably say that the N5 form gave them reason to break the lease as I had started it. That the LTB would be fine with them not giving me 60 days notice and me being out a months rent. So it seems the N5 could cause the landlord more grief.

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    1. Hi Craig: Thanks for commenting. If I understand correctly, the tenant voided the N5 by stopping smoking marijuana in the 7 days following the service of the Notice of Termination in Form N5 but then smoked against starting 8 days after the service? If so, the first N5 was void and the tenant's could not move out pursuant to that Notice. They would have to serve a legal Notice to terminate (i.e. 60 days if they are on a month to month lease).

      If however, the smoking never stopped and the first N5 was not voided then you have to look at the provisions of the Notice of Termination. Indeed, you will see and it is as you have found the service of the N5 will terminate the tenancy if the tenant's move out in accordance with the Notice you have given to them to leave.

      The problem you identified (i.e. loss of rent) by the dope smoking tenant's moving out does indeed seem to be unfair. These tenants are avoiding the liability to pay rent to the end of term or the end of a proper 60 day Notice period by doing something that is getting them evicted. In effect, it is their own bad conduct that is rewarding them by letting them avoid their rent obligation to you.

      This is, indeed, the way it works out on a practical basis. However, there is an argument to make and a case to file against the tenants for the lost rent in the small claims court. There is a Superior Court decision from Ottawa that deals with the very issue you are raising. It is an older decision but it basically says that a tenant can not avoid the rent liability under a lease by getting themselves evicted.

      Unfortunately, to complicate the matter, more recently we have a decision out of the small claims court that says a tenant does escape liability for ongoing rent when a landlord evicts the tenant for non-payment of rent. Whether the logic of that case would apply to an eviction based on an N5 for dope smoking is left to be seen.

      In short, the problem you are facing is indeed real and it may very well be that you lose out on rent by evicting the tenants. However, the case is not all lost, there is caselaw that supports your position and recognizes the unfairness created by the situation. Perhaps you will take the step to sue the former tenants in the small claims court and be the case that clarifies this point of law for us? If you do, please let me know how it goes and good luck,

      Mike Thiele

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  2. My land lord has issued me two letters to stop the noise of child which is bothering the apartment resident living under my apartment. In both their letter the content explains the thing as I am damaging the peaceful living of almost all the resident in apartment building but the case is pertaining to one tenant. In their second letter the threat me to issue form N5,

    What should I do to protect my self?

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    1. Hi There and thanks for the comment. There isn't really enough information in your comment to allow a complete response. The letters you refer to are clearly not proper N5's as the landlord only threatens to send you one. So, at the moment, you are not subject to eviction--all you have is a warning.

      If the warning letters have sufficient detail---who makes the noise, when is the noise made, what is making the noise (voice, torys, music), where is the noise (in the apartment?), then at least you can judge whether the warning is fair or not and you can decide whether this is the kind of noise that should be stopped if it is, indeed, happening.

      Several years ago I had a case where my clients toddler would, every morning, slide down the side of the bed, hit the floor with a thump, fall onto his bum, get up and start running down the hallway of the apartment. It made the sound of thumping feet that everyone recognizes as being of a young child. The apartment was above the apartment of a woman who wanted absolute peace. The Landlord, a large Social Housing provider, actually sought to evict my client because of the noise made by her toddler. We showed that the noise was unavoidable and the result of normal and reasonable living in the rental unit. The floors were hardwood, the building like a drum. We highlighted that the landlord could have installed carpet to deaden sound but chose not to. We argued that to percale the possibility of children moving around the apartment in the "normal" way this child was moving around the apartment was the equivalent of making the unit an "adults" only building--which of course is a human rights violation. The eviction was denied and my client was permitted to remain in the unit. The Board recommended that the landlord install carpets.

      The point is that not all noise is unreasonable or substantial interference. The trick for you is to look at the noise being made by your child and determine where on the scale of "normal" and "reasonable" the noise falls. Also, consider whether there is anything the landlord can do to help with the problem (can the landlord install carpeting or other noise barriers) and if there is something the landlord could do--suggest that to the landlord in a letter.

      If you figure out that the noise your child is making is "unreasonable" then you have an opportunity now to take steps to stop the noise--and not be evicted. If the noise arises from a disability then some other factors apply in how the landlord and the other tenants are required to accommodate you. The answer truly lies in the scope and extent of the noise being complained about and the reason for that noise/disturbance.

      You may wish to consider getting advice from a lawyer with experience in Landlord and Tenant law or even get advice from a local legal clinic--that hopefully has experience in landlord and tenant law. If you are in the Ottawa area I'd be happy to speak with you too.

      Best of luck.

      Michael K. E. Thiele

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  3. Hi I was wondering if your tenants complain about noise can the landlord evict you or do you have to go to court first?

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    1. Hi: Presuming that this is all happening in Ontario, Canada. If other tenants in the building are complaining about noise coming from another tenant, then it is the Landlord's obligation to serve the tenant who is making the noise with an N5 (Notice of Termination for Substantial Interference). The landlord is obligated to investigate the complaints, collect evidence to prove the complaints, and then serve the Notice of Termination.

      The tenant who is accused of making the noise has the right to know the details of the allegations. In the context of noise, the tenant has the right to know what it is the landlord wants them to stop doing so that their tenancy is continued.

      If the Landlord feels that the tenant is still making noise, or hasn't stopped making noise, then the Landlord has to apply to the Ontario Landlord and Tenant Board (like a court) for an eviction order. At the Landlord and Tenant Board the landlord will have to prove his/her case just like in a regular Court. The landlord has the burden of proof, on a balance of probabilities, to establish the allegations that are set out in the Notice of Termination.

      Whether this leads to eviction or not is hardly obvious. Some landlords think that anything they write in the N5--Notice of Termination--will actually be legitimate grounds for eviction. That is not at al true.

      Evicting a tenant is a difficult thing to do and there are many technicalities that have to be met. If you are facing eviction, make sure to get good legal advice at every stage of the process.

      Michael Thiele
      www.ottawalawyers.com

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  4. We, (my girlfriend and I) currently rent out the basement apartment in a bungalow with a family of 5 rent upstairs. They have lived there before us and we have been there for just over a year now. At first everything was good (as is everything), but later find out that their daughter, (somewhere around 5-7 years old) continuously plays directly above our heads jumping shaking the lights above our heads where we sleep and they don't stop her. We have both spoken to them multiple times, gotten in arguments, I even have a recorded a conversation when I spoke to him once before because when he drinks he becomes more ignorant and stubborn to the problem at hand and refuses to do anything about it. We asked the landlord and the owner to speak to them which they have but the family smiles and ignores the warnings and continues making noise directly above us. He has a sound system that he moved to the other side, but then plays it EXTREMELY loud during the day and sometimes late evening you can still hear it in the back where he moved it from, I'm surprised the neighbors have not complained it's so loud, I will ask the neighbors if they have ever complained. (I have a couple recordings of that as well when they played loud music).

    He blames the landlord for not installing insulation in between the floorboards and leaves it at that... yet his wife walks in her high heels EVERYDAY on the hardwood floor. The only understanding person upstairs is the son who is around 17 years old, when I ask for them to be a little considerate about the noise he says he will do what he can and goes speaks to his sister so she doesn't play as loud. Also the son was there a few times when I spoke to the father, the son calmed the father down a little bit one night during an argument and told me "not to worry" he will speak to his sister again and straighten things out. Do not get me wrong, I am not blaming the daughter in this scenario, I'm blaming the parents for being so ignorant and inconsiderate. Sometimes he refuses to answer the door when I ring the doorbell now. I asked him politely every single time that I understand family can come over but to be considerate as they have multiple rooms and lots of space to have the kids play in but refuses to tell them to move. They drag furniture all across the floor without picking it up and bounce all kinds of balls on the ground.


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  5. Recently, they have gotten a dog which is not allowed. For us, we have a pet Chameleon which we spoke to the landlord and the owner about on Day 1 and they approved it, it's in the lease we signed. But the tenants upstairs now have a dog, and I'm allergic to dogs. I'm allergic to cats, dogs, grass, weeds, and fruit (it sucks I know), so we have ended up taping all of the vents shut because I don't want my allergies kicking in. The dog moves around at night time, clawing everywhere, picking objects up and dropping them on the ground way past 1am, numerous times I have been woken up at 3:30am because of it.

    We share the driveway respectfully, (we have 1 car parked on the left side next to the grass and they park their van and another cross-over vehicle on the right), and another ridiculous act they have done was park across the whole entrance of the driveway and we could not get in at all we had to park on the street. (I took a picture of that too). They wouldn't answer the door, I called the police but not even sure if they came at all. Later that night the vehicle was parked correctly, they never gave a valid reason as to why they did it.

    At the top of the article I was reading about the N5 form to fill out. We are on good terms with the landlord and the owner, they are good people and mean well, but the tenants upstairs need to learn how to be considerate and I've ran out my patience on it as we are both losing much more sleep than we did before. Regarding this N5 form, I don't want to get the landlord in any kind of trouble if it were go to court. I have countless recordings (both video and voice recordings and some pictures) on different times when 5 kids would be running upstairs at 10pm when they know we don't work the same times as them and go to bed early. Will this form will have to be given to the tenants from the landlord or is it possible that we can fill it out and give them this notice? Any additional information/options are greatly appreciated, thank you. I do apologize for the lengthy explanation, I just want to make sure that the information is there and you get the idea of what's going on

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    1. the short answer to your significant problem is that you need to fully document the transgressions by your neighbor and each and every time communicate those transgressions to the landlord in a way that you can prove delivery to the landlord----i.e. by fax, email, or signed receipt for letter. The reason for this is that it is only the Landlord who has the right to serve an N5 on the neighbours. Tenants can NOT serve an N5 on other tenants.

      Your remedy lies in making the Landlord do his job and serve an N5 on them for what you are going through. I appreciate that your landlord is not particularly pro-active. This is why you need to document the delivery of your complaints to the Landlord. Once the landlord does “nothing” you will file an application against the Landlord in Form T2 (Tenant’s Rights). You will allege that the landlord is failing in his duty to provide you with quiet enjoyment of the premises—in failing to serve N5’s and bring the conduct of the neighbor tenants under control. At that hearing, you will need to prove what you are going through (hence the pictures are good, statements, recordings of noise) and that you reported those problems to the Landlord.

      The remedy that you will seek against the landlord is a rent abatement as well as an order requiring the landlord to fulfill his obligations under the RTA.

      Hope that helps. Please note that this applies to Ontario tenancies only and this email is only general information. For legal advice I would have to meet with you and be formally retained. A formal legal opinion would take into account your specific circumstances and rely on information that you have not necessarily supplied in your email to me

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  6. What about those situation where the N5 was voided by compliance within the 7 days following service of the Notice of Termination?

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    1. If the N5 is voided by compliance within the 7 day period following service then there is nothing that can be done--from the perspective of evicting the tenant based on the first N5. The first N5, however, is not completely void. It has a value for 6 months. If the tenant within 6 months does something again that warrants the service of a subsequent notice you can do so. If you look at the N5 form, you will see on the second page a choice between a "First" N5 and a "Second N5" notice. The second N5 has a shorter termination period and is NOT voidable. So, if the tenant does something warranting the service of another notice within six months then you serve the Notice and proceed immediately to issuing an L2 application.

      Hope that helps.

      Michael K. E. Thiele
      Lawyer

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  7. Hi Michael, we have been complaining to our property management about the noise issues from the tenant right above us. We have given 5 written complaints and have shown them video recordings of the noises late in the night. they have been telling us that they are trying to resolve this but we have never gotten anything in written telling us what action was taken. We have been following up for two months and there hasn't been any respite. what are our rights as a tenant?

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    1. Hello:

      So far you seem to be doing everything correctly. Complaining to the landlord about the disturbances and providing evidence is exactly what you need to do. You should continue to provide the landlord with written complaints whenever you have a problem. You haven't described the nature of the noise but I trust that it is something that is obviously beyond normal noise for an apartment building? If there are other tenants in the building you may wish to see if they too will complain to the landlord if they are disturbed by the noise.

      The landlord is required to deal with your complaints and to proceed against your noisy neighbours. The landlord should have completed their investigation and presuming they are satisfied that the noises you are describing meet the legal requirements for eviction proceedings then they should have served the tenants with a form N5 which is a Notice of Termination for Substantial Interference with reasonable enjoyment of the premises.

      While you are frustrated and wondering if anything at all is happening it may very well be that the landlord has indeed served the N5 notice(s) and may very well be proceeding with an eviction application. Many landlords and perhaps you own as well, subscribe to the belief that Ontario's privacy laws prevent them from giving you the full details of what they are doing to address your complaint(s). In fact, with many landlords, you would only find out what is happening with respect to your complaints when you are asked to attend a hearing or are summoned.

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    2. Of course, there is an alternate possibility and that is that your landlord isn't actually doing anything. Your landlord might be hoping that you just stop complaining and that you live with whatever it is that you are bothered about. If this is the case you have some choices/decisions to make that include 1) living with it, 2) filing an application, 3) terminating and moving out.

      You seem to be keen on staying in the unit and getting the issue dealt with. So, I recommend that you collect more evidence of the unacceptable noise. One way to do this is to have a by-law officer attend and ticket the neighbour. The by-law officer and a report from her becomes useful evidence at a hearing which confirms that your complaints are reasonable. That you are "reasonable" people will become an issues in the proceedings as the easiest way to defend against any application your bring is to deny that there is a problem in the first place. Alternatively, the argument would be that you are complaining about normal apartment sounds or noises that arise from normal living in the type of building that you are in. You need to collect evidence that demonstrates the noises are not "normal" and that establishes that your complaints are well grounded.

      Once you have the evidence, and it is clear that your landlord is really just ignoring you (presumably you have spoken with the landlord several times about this), you may wish to consider filing a T2 (Tenant's Rights) application against the landlord. In that application you assert that the landlord is interfering with your quiet enjoyment of the premises because he is refusing to deal with your noise complaints. You would seek an abatement of rent and an Order that the landlord deal with the noise problems. This kind of application normally spurs action on the part of the landlord and you should finally get action or an explanation as to why they are not doing anything. Whether the landlord is dealing with the issue properly is the issue that will be adjudicated by the Board member.

      I should highlight that you as a tenant do not have the right to bring an eviction application against your neighbour. Neither do you have the right to seek the eviction of your neighbour in the application that you bring against your landlord (even though it looks like you could ask for that in the form). An eviction application in this context needs to be brought by your landlord.

      Hope that information helps you out a bit. If you are in a larger center you can usually get help at the Board from a duty counsel that is there to help tenants.

      Good Luck

      Michael K. E. Thiele
      Ottawa Lawyer

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    3. I've been having real problems with a tenant living above me in Ottawa since October 2012.

      I filed a T2 with the LTB but this was a waste of time. Even though the mediator pointed out to the management company it being heavy handed with me compared with the tenant above who only received a letter reminding her of her she had to be mindful of the neighbours, I never received any compensation whatsoever! The mediator and the duty counsel told me that the LTB rarely awards compensation and when they do it is usually a pittance.

      I have had By-law officers there 3 times. This latest time (Dec. 8), it took the officers 2 hours to get to my building. By the time they got here the noises had stopped. They did not come to my apartment but one officer called me the following day. He noted that I could make a verbal statement. However, I chose to let him speak with her one more time because I feared retribution from the tenant. After he spoke with her last Saturday he came to speak with me and advised me that I could still make a verbal complaint and he could still issue her a fine. But, I decided to wait.

      Today, when I got on the elevator she was there. I didn't notice her when I got in the elevator otherwise I wouldn't have gotten on it. Just as she was getting off the elevator she laughed at me saying that the By-law officer wasn't going to be doing anything because she had a right to live. I replied that I had a right to sleep. She repeated "They're not going to do anything - honey!" After she said that, I went right back up to my apartment and left a message with the By-law officer to go ahead and fine her.

      Tonight, I've been listening to loud music and loud voices. Because By-law isn't working today, the police was dispatched. Once again they arrived over an hour later and by the time they arrived the noises were considerably reduced. I spent 1/2 hour speaking to one of the officers who put so much emphasis that I would have to prove my case, and what the judges have to consider, that I was left with the impression that I would loose.

      So, Mr. Thiele, I've done everything that you've suggested and have read everything that you've noted in your blog in other sources. I've complained to the Minister for Housing about the whole process, I've received no help from the landlord, by-law, police, various levels of government.

      The management company no longer replies to my emails even when I have questions about the tenant renewal agreement (they are asking for another rent above the guideline increase for the second year in a row - asking 3.6% increase). So, it's now 1:26 a.m., the loud voices are getting louder but no music. The police suggested I sue the tenant for being a private nuisance but I don't know if I can and how much this would cost me. So, I would appreciate it if you could provide me with any advice on the latter as well as any comments on my situation.

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    4. It is most unfortunate that you are unable to get the evidence you need to prove the substantial interference with your reasonable enjoyment of the premises. The key to any case is "evidence" and without it you are just not going to be successful. The point of calling by-law, the police, the landlord, is to collect evidence in support of your contention that the noise is unreasonably loud and that it amounts to a substantial interference with your reasonable enjoyment of the premises. From what you describe, the only proof you have been able to collect is your own experience. That makes any application to the Board a "she said--he said" kind of case.

      You don't indicate what happened with your LTB case. It sounds like you got to the mediation process but that you settled it there? Is this accurate? If not, what happened at the hearing?

      The mediator's statement and duty counsel's statement about LTB compensation being low is not inaccurate. So, if this is about compensation and not getting the noise stopped then the LTB processes will be largely unsatisfactory. However, getting the Board to deal with your problem is, I think, easier than the impression left with you by the duty counsel and mediator. The problem sometimes is that the Board deals with a very high volume of cases and it truly is adversarial notwithstanding the impression that the Board literature might leave you with. Hence, if you don't push your case, or know how to push your case, then the other side who does know how to push, wins.

      Given the troubles you are having I think you might be beyond the DIY (do it yourself) stage. Unfortunately, you will need to find professional assistance ranging from free legal clinics to paid representation by paralegals or lawyers. The only other alternatives include putting up with the noise or moving out and acknowledge defeat.

      Your last paragraph leaves the impression that your property management company now views you as the problem and is regarding you as being overly sensitive and hence a trouble maker. It is an unfortunate reality that landlords do eventually pick sides and it seems they have picked against you. As for the police suggestion that you sue the tenant, that is an interesting option but ultimately a very difficult one. Without getting into this "tort" and determining whether it would work, you must remember that in a Court the evidentiary burden is much stricter than at an administrative tribunal like the Landlord and Tenant Board. You will have the same problem in Court as you would have at the LTB--getting evidence and proving your case.

      Good luck to you in this matter.

      Michael K. E. Thiele
      www.ottawalawyers.com

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    5. Thank you for responding so quickly. My original note did include information about the hearing but the blog limits the number of characters one can use.

      The first hearing was adjudicated because the regional manager wasn't available. At the second hearing the manager requested mediation. It began with the mediator telling me that the noises that I had recorded and took pains to save on DVD (it was laborious process for me since I'm not technologically savvy) where not admissible. The reason being, because one can raise the volume, this 'evidence' becomes subjective. To that I reply that the very fact that I could record the noises should indicate how loud the noise is.

      Mediation lasted about two hours. The regional manager was onerous and the mediator did press him quite a bit. Nevertheless, I didn't receive any financial compensation. However, the company did offer to allow me to move to another unit where the unit above still has carpeting and continue to pay the same rent that I am paying. However, although the mediator really pressed hard to get the manager to agree that laminate flooring would never be installed in the unit above while I lived in the building, the manager absolutely refused to make this commitment.

      I went to see the apartment and it is slightly smaller than the one I currently reside in. However, because there was no commitment from the manager about the carpeting in the unit above, because I would still incur relative moving costs and because I had decided to move, I didn't take the apartment.

      I did search for a new place to live for two months and it's very difficult trying to find something that is affordable and safe. I earn a good salary, but the rent now for an apartment smaller than what I currently have is anywhere between 50% to %60 of my net income. It is also very difficult to find an apartment on the top floor of a building.

      At this point I'm feeling very discouraged. Today all I heard was heavy footfall all day and for the past 3 hours the heavy footfall has become even heavier - deliberately so. I can only hope that eventually she and her guests will end up hurting their themselves. I have a massive headache going down my neck.

      I'm considering posting the video that I have to YouTube and/or going to the press. I've accumulated information about sound proofing floors and ceilings in condos and apartments. The City of Vancouver has a report on the issue but the City of Ottawa doesn't seem to have one and I've received no response from the Mayor's office or other City officials. Nobody wants to address this issue because they know that it's a powder-keg.

      I've been dealing with the issue of sound-proofing of floors and ceilings in multi-unit dwellings for 12 years. I had to sell my condo because the property management company and the condo board wouldn't do anything about the owner's boyfriend who was making and snorting crack cocaine in the apartment. In addition, he was beating her up. I had the police there many times and eventually he was arrested. But, she took him back and everything started over again. There were many nights that I only got 1 hour sleep. With the exception of the domestic abuse, I'm experiencing the same issue all over again. There are nights that I don't get any sleep at and still have to go to work. I wish there was a way to get in touch with other tenants/condo owners so that we could get the laws changed. There is strength in numbers, afterall.

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    6. Thank you for the additional detail. The mediation you entered certainly lasted a long time and I presume that by the end of the process you had enough and didn't want to go to hearing. In Ottawa it likely meant a further adjournment in any event as the hearing block you were in was likely about to end. The argument against your video/recording is interesting and is one I have successfully used myself. However, I'd be interested to see that argument against a recording on an IPHONE or other smart phone as fiddling with the microphone gain is not a standard feature on these devices.

      Your comments about sound transfer in condo's and apartments is a significant and incredibly important issue that is getting virtually no attention. In relation to condo's you can read about various legislative attempts (that go no where) to address these quality of life issues in relation to sound transfer--especially in Toronto. With all the condominiums going up in downtown Ottawa I will often stop to watch the construction as I find it interesting. On many of these condos, especially the wood framed ones where the separation between floors looks (from the ground) like the separation between floors in a house I am left wondering if the whole building isn't just a giant drum to be played by inconsiderate owners or tenants. You are right of course that construction standards will only change with legislation or the strength of numbers in people refusing to buy units in poorly constructed (from the persecutive of sound transfer) complexes.

      Thanks for writing.

      Michael K. E. Thiele

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    7. You are right - I was absolutely exhausted and feeling ill after mediation. I agreed not to complain about the tenant again. However, I was wondering if it is possible to re-apply to the board again for compensation since nothing is being done?

      By the way, I used my Panasonic Lumix camera to record the noise and recorded the weather station to note the time and date. Also, I've started to provide reviews about the building where ever I can - http://www.rentersrating.com/pages.php?lang=en&page=advancedsearch&action=details&pid=1900.

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  8. First off - thank-you for your blog and comments, they are so helpful!

    Here's a run down of my current situation:

    My bf and I have been living in the main floor/basement of a semi-detached house for about a year and a half now, we have a great relationship with the landlords, they appreciate that we take care of the property and we never complained when our last house mate - using the second floor of the house was living at the house for our first year. There was nothing to complain about - she was awesome!

    Everything changed this past December when our awesome upstairs neighbour moved out and a new girl moved in.

    This new girl has been an absolute nightmare from Day 1 - constant guests day and night (as late as 2am on a Wednesday night and as early as 7:30am in the morning on a Saturday), Constant stomping back and forth, loud talking, loud music, construction, she even mentioned she might want to open a day care in her tiny apartment above our heads - she has no respect for anyone around her.

    When the noise started to worsen - I started taking notes, saving text messages of our contact with her and just tried to document the larger disturbances with evidence as best I could.

    We also brought our complaints to her first, but as she was defiant and unapologetic (extremely quick to anger and rude) and the situation worsened to a point where we had a rather nasty exchange one Saturday morning at 9am - we decided it was time to bring in the landlords.

    Our LL spoke with her and said he thought he had gotten through to her - if he did, it was short lived as she made the same amount of noise and after another massive disturbance at 2am on a work night - we reached out to the landlord again. He did some homework (probably to make sure I wasn't completely crazy - lack of sleep and peace does bad things to people) and reached out to our neighbours on the other side of the wall (we're in a semi detached) and they CONFIRMED the disturbances - snap!

    The second time he spoke with her, I don't think it was his intent to start the eviction process, but because she was so rude with him, he decided it was time for her to go.

    Him and his lawyer have started the process (They have all of my evidence to help get her out) and there was a Canada Post notice on the door for her to go pick up a letter in person - which I'm guessing is the N5.

    My questions are:

    1. What if she doesn't go to the post office to receive the N5?
    2. Given how hard it is to get rid of a bad tenant in Toronto - do we stand a chance?
    3. What other steps should I take in terms of protecting my rights as a co-tenant and mitigating retribution from her - it's probably going to get ugly, but is it really our fight anymore? Do we need to be involved - or just let her and the LL hash it out?

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    1. Hi there and thanks for the questions. I will answer generally and make some assumptions in my answers about facts you haven't mentioned--so take this as general information as opposed to legal advice.

      With respect to your questions---1) it is a problem that the tenant was served by registered mail. If she never picks up the notice then she was never served. Yes, she can avoid service by not going to the post office to pick it up. If the Canada Post notice is for an N5 notice, then it is likely that the N5 will be invalid for lack of service. Timing of service also matters for the termination date in the N5. The service by mail rule which deems a mailed document served 5 days after mailing will not apply to a registered letter. In this circumstance, a regular first class postage letter is "better" than registered mail. 2) Getting rid of bad tenants isn't so hard. What makes it seem hard is that many landlords don't know the law and hence make terrible mistakes (like sending things via registered mail). Those terrible mistakes result in dismissed applications and thereby there is this sense that its impossible to evict tenants. Certainly in Ottawa it is fairly easy to evict tenants--but we have a very good bar and strong paralegals who understand the rules and the burden. I do understand that Toronto is notoriously more litigious and your waits are longer--but in the end, the law is still the law and a properly presented case will win out eventually. 3) All that you can do is record and collect evidence. If she goes nuts, call by-law and/or police. Make noise complaints and don't let up. Certainly be civil, but document---email your landlord about all developments and keep complaining to him. If the upstairs is a total nutter and makes threats then of course you will need to make police complaints. You could consider a restraining order or section 810 Peace Bond--though you would need to speak with a criminal lawyer about that. Do you have to be involved? --the short answer is absolutely. The landlord will not be successful without you. if you don't attend hearings to testify then the landlord will fail in his application against the tenant. A letter or affidavit is not enough. Your presence to testify and be cross-examined is effectively mandatory. I wish I could tell you that your job is done---but it isn't.

      Best of luck. I'm interested to hear how it goes for you. Please let me know if you don't mind.

      cheers

      Michael K. E. Thiele

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    2. Thanks for the speedy reply - that's good to know about the N5, I may reach out to the LL and see if he has received confirmation that she has been served her notice.

      I will definitely keep my records up to date and help the LL anyway I can and let you know how the whole thing rolls out :)

      Thanks again!

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    3. Hello again Mike,

      Wanted to give you an update on the situation with our neighbor from hell - she's moving out end of May! The landlords confirmed that she was served her notice in time and then she got a paralegal involved who I guess advised her to cut her losses and move on.

      So happy to be rid of her, I hope the next neighbor is better - fingers crossed!





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  9. I have read your blog and found useful information. Thanks for sharing. Landlord tenant board Toronto

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  10. Hello Michael.
    My Boyfriend and I are new tenants. This is our first apartment, so we don't know what to do in this situation. We live on the bottom floor of a 3 story apartment. The walls and floors are as thin as paper; we can hear full conversations all day on both sides of us. This is not the problem though. The people above us have children. We can hear when the people above us are walking but its when they are CONSTANTLY stomping, running and banging on the floor that has become bothersome. Its like they are always dropping things on the floor, most nights around 11:30pm-1am we hear a consistent thumping above us. I swear this lady doesn't sleep as they are making these noises throughout the day and night. We have recently noticed over a 100 bumps/dents in our ceiling, ( from the previous tenants) who could obviously hear the same things. The children from upstairs have recently become friends with the family beside us. The boys are ALWAYS running around the halls, and playing hockey right in front of our apartment and hitting our door in the evenings. My boyfriend works nights, and im working while going to college to be a Child Youth Worker. By no means do I dislike children, I love them. But when my boyfriend can barley get some sleep during the day, and I can hardly find a quiet moment... its tuff. we have yet to approach our Landlord because he's extremely rude: (yell and swore at me because I asked him how to shut off the fire alarm 1week after moving in). We don't know what to do at this point.

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    1. Hello. I'm sorry to hear of your problem. The dents/bumps on the ceiling sure are telling about the problems that all tenants in your unit seem to have. I suspect that the prior tenants will have complained to the landlord with nothing useful coming from it. Given that the landlord is rude there may be no point in trying to have a conversation with the landlord. However, you do still need to notify him of the problem and request action from him. This should be done in writing, preferably by email (to prove delivery) or by fax. In the email/fax you should detail the problems with date, time, who, what, where, why, when. Lots and lots of detail. Confirm that the problem is ongoing and virtually continuous. Inform the landlord that you have no quiet enjoyment and that you need for him to deal with this problem immediately. You might also request that the landlord lay down carpeting upstairs and ask him to investigate sound-proofing your unit as you can hear the exact words of spoken conversation in neighbouring units.

      The landlord may just ignore you. If he does, then a few days later (2 or 3) write to the landlord again, advise of any ongoing problems and ask him what he has done to address your complaints. Presuming you get no response, write to him again in a day or two after that advise him of any update on the noise (lots of detail), ask for an update on what he has done, and tell him that unless you get a satisfactory response that you are going to file an application with the Landlord and Tenant Board seeking a rent abatement for lack of quiet enjoyment. You could also decide to ask for termination of your tenancy plus a rent abatment, plus moving costs etc.. If the landlord still does not reply, go ahead and file the application in Form T2. I'd carefully consider the option of seeking termination of the tenancy (you can ask the Board to let you terminate in 30 days, 60 days, or whatever works for you). The dents in your ceiling suggest that you won't be getting any peace and quiet any time soon. For the next apartment think about the location and the construction style of the building.

      Michael K. E. Thiele

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    2. I am having a similar problem with tenants above me stomping at all hours of the day and late at night into early morning. Complaints to superintendent have not helped. It actually seems worse now and is causing us extreme stress. Can form T2 be used if it's another tenant causing the continuous noise. The form only states the landlord, the landlord's agent or the superintendent interfering with reasonable enjoyment of the unit. Thank you.

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    3. Hello: You may indeed use the T2 against the landlord even though it is a different tenant that is causing the problem. The legal theory behind the claim is that you have complained to the landlord and the landlord has failed to take the necessary action to fix the problem. This type of application is complicated--if you live in an area where there is a legal clinic or if you can attend the Landlord and Tenant Board you can speak with a duty counsel who can explain what you need. Make sure you have stong evidence of the problem, strong evidence of complaining to the landlord about the problem, and be prepare to show how the landlord has done nothing to help you.

      best of luck

      Michael K. E. Thiele

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  11. Hi Michael - How can I prove that noise is NOT being caused by me? Should I request the landlord enter my unit when it is occurring so that I can demonstrate it is not caused by me?

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    1. Hi Mary: Proving a negative is very difficult to do. Other than saying so, what evidence is there in support of the fact that you did not do something? That being said, ask for dates and times to see if you can prove that no one was in your unit at the time of the alleged incident. See if you can find neighbours who will back you up that the noise is not coming from your unit. and certainly, if the landlord is willing or has security staff advise the landlord to knock on your door to speak with you about noise. If you are satisfied to do it, asking the landlord to enter your unit during the "noise" (after knocking) is a fair enough thing to do. It is best if you put these matters in writing so that you have proof of your attempts to address the concerns.

      Michael K. E. Thiele

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  12. Hi Micheal,
    I have a tenant that has complained about another tenant playing music too loud during the days. This tenant is rapper, and he restricts the time he plays to working hours and not past 5pm. He also wears ear phones but still has to rap. My other tenant has complained about his rights to reasonable enjoyment of the shared house. I have asked him to collect proof and send me emails regarding the noise. He refuses to and he just wanted to make sure I was aware of the situation, but he continues to complain. I have told him, there wasn't much I can do, if I do not have any proof. I have also spoken to the rapper, to be mindful of other tenants in the house. There is a third tenant and he doesn't complain at all, but that is because he works during work hours. I am not sure what else I can do to make sure that I have done my job as a landlord, and will not have consequences later on.

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  13. Hi Trang: You said "shared house" in your question. Are these tenants in separate rental units? Are they on one lease? Is this a rooming house situation with multiple leases? If the tenants are joint tenants on one lease and they basically annoy each other then there is effectively nothing that you can do as to evict one is to evict them all. If there are multiple leases then of course each tenant has the right to quiet enjoyment of the premises. The right is not absolute as the nature of the rental units must be taken into account. Absolute quiet is rarely possible. The ground for termination is "substantial interference". You are correct to investigate and correct to ask the complaining tenant for evidence. If you can not "prove" that a tenant is substantially interfering with the reasonable enjoyment of the premises then you simply have no basis to take action against the tenant. You are correct to investigate and correct to ask for evidence. Document your requests, email to the tenant who is complaining and keep track of what you are doing to address the alleged problem. You will need this evidence to prove that you have done your job as a landlord if the complaining tenant files an application to the Landlord and Tenant Board.

    Michael K. E. Thiele

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  14. Hi, I am a landlord and have a tenant who lives in the basement of my house. Lately she has been having people in and out at all hours of the night - after 11pm , cars in and out of the driveway, loud music, shouting and carrying on outside, she has a teenage daughter who often starts screaming at her mom outside the house, and lots of slamming of doors. To me, this is irritating; however, my main concern is the neighbours, as I feel that they have every right to complain when this is going on after midnight and disrupting their sleep.
    I have spoken to my tenant and told her that it is a problem, but that hasn't helped. Do I tell my neighbours to file a noise complaint? And if they do, can I use this as reason to evict her if the problem persists?

    Thank you,

    Diana

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    1. Hi Diana:

      Thank you for your question as it allows me to address a legal issue that I don't think I've brought up before in this blog. Presuming of course that your tenancy with the basement tenant is covered by the Residential Tenancies Act (i.e. no exemptions), then you have recourse to an eviction process as a small landlord living in the same building as the tenant that many other tenants do not have. The section of the RTA that you should read is section 65. It provides as follows:

      65. (1) Despite section 64, a landlord who resides in a building containing not more than three residential units may give a tenant of a rental unit in the building notice of termination of the tenancy that provides a termination date not earlier than the 10th day after the notice is given if the conduct of the tenant, another occupant of the rental unit or a person permitted in the building by the tenant is such that it substantially interferes with the reasonable enjoyment of the building for all usual purposes by the landlord or substantially interferes with another lawful right, privilege or interest of the landlord. 2006, c. 17, s. 65 (1).
      Notice
      (2) A notice of termination under this section shall set out the grounds for termination. 2006, c. 17, s. 65 (2).
      Non-application of s. 64 (2) and (3)
      (3) Subsections 64 (2) and (3) do not apply to a notice given under this section. 2006, c. 17, s. 65 (3)

      SUMMARY OF WHAT THIS MEANS

      Because you, as the landlord residing in the same building as the tenant, where there are 3 rental units or less, are experiencing behavior (noise, yelling, slamming doors, loud music) on the residential complex that is substantially interfering with your reasonable enjoyment of the premises, you are able to serve the tenant with a Notice of Termination (Form N7--and look at box #4) that she is not able to correct or void. The key of course is to be able to prove the allegations. From that perspective, noise complaints by neighbours to police or bylaw would be helpful in that these complaints and any resulting tickets or charges will be proof of the existence of disturbing behavior. Whether this behavior amounts to a substantial interference of your reasonable enjoyment is a matter of your evidence.

      Your question focuses on your neighbours being affected by the noise, music, cars, yelling etc., and not on you being affected by this behavior. I'm presuming that you have focused on the neighbours because you were unaware that you could evict based on your own suffering.

      If by chance, you would not consider yourself to be suffering a "substantial interference with your reasonable enjoyment" as a result of the tenant's behavior then there is very little that the neighbours can do to evict the tenant. Yes, the neighbours may call police and by-law and the neighbours can prove whatever they like about the tenant's behavior. However, the Residential Tenancies Act is virtually indifferent to the impact of a tenant's behavior on people who are not tenants of the same landlord. In short, your neighbours suffering is immaterial under the RTA.

      Presuming again that you are not being disturbed by the noise etc., but your neighbours are, you could still serve the N7 form but rely on the notion that the tenant's behavior is interfering with a lawful right interest or privilege (see the second part of section 65 quoted above). That however is a more cumbersome argument on the facts your describe. It is more likely, if the neighbours are bothered enough, and the police come and the by-law comes that charges will be laid. Those charges could form the basis of a Notice of Termination being served for an illegal act (Form N6) occurring on the premises. An illegal act under the RTA does not have to be a criminal code offence--i.e. illegal act means more than a criminal act. Any violation of a by-law etc., can be the basis for a termination for an illegal act.

      Hope that this information provides you with some guidance. Best of luck.

      Michael K. E. Thiele

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  15. Hi Michael
    I recently purchased a building on the main street of my town. It is a two storey building with two commercial units on the bottom and one residential unit above. The area is zoned C1 commercial with a clause of residential upstairs.

    Upon taking possession I made a number of upgrades to the commercial units along with the residential units. All was going well until my residential tenants decided that summer had arrived and it was time to host many parties. Loud music, laughing, swearing, drinking and pot smoking. I run my business out of one of the lower units and I have extended ours during the week and weekends to meet with my clients when necessary. I recently had a meeting with a potentially new client and that was one of the nights when it was time for my residential tenant to party. I could not conduct my meeting from the noise and the clients left very disappointed. I was extremely embarrassed and apologized. I also received two noise complaints from other building owners. I provided my tenants a written notice advising them that the noise was unacceptable and to please respect my privacy. They were also advised that I run my business out of the unit and there are times when meetings will be setup later in the evening. The tenants accepted the letter agreed to keep it down but now I have received the nickname asshole everytime I see them.

    I also recently discovered that they were renting out the unit as a B&B and were charging nightly, weekly and monthly. The rent that they pay would basically cover one week of the weekly rates.

    The previous owner let the tenants do whatever they wanted and had never increased their rent in over three years.

    I am now having problems with the tenants in the building beside me. At the back of my building I have a large deck. The deck has fire rated stairs for emergency exit. The building next door has a fire exit door off my balcony which was agreed to be used only in emergencies. Well that door is used as a regular means of egress. Plus the next door tenant has decided to use my deck to party themselves, smoke and leave their garbage. Not only am I dealing with my tenant but I am now dealing with my neighbours tenant. When I approached my neighbour the building owner, they advise me that I should talk to their tenant who also calls me the asshole. I have told my neighbour to deal with their tenant or I will charging them for the egress use and fire exit maintenance.

    What did I get myself into.
    Dave

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    1. Dave: The RTA does provide solutions for your problems. You have described facts that allow for the service of an N5 and an N6 (reasonable enjoyment, lawful right interest or privilege, and Illegal Act). The question is how to proceed with eviction in the most expeditious manner and what is the "best" case to proceed on. It is a little too complicated to answer in this context though you can get an idea of the nature of the N5 and N6 by going to the Landlord and Tenant Board website and reading the guides to these forms. Beyond that, the key for you will be to build a case by collecting evidence in a readily presentable manner that is good enough to mandate eviction. It is very difficult for a lay-person to do this well. Hence, I recommend, given the serious nature of your problem, that you find a lawyer who has experience in residential landlord and tenant law. The key is to get an experienced lawyer. The Landlord and Tenant Board, as an administrative tribunal, is very different than proceedings before the Superior Court of Justice.

      Best of luck.

      Michael K. E. Thiele

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  16. Hi Michael, I have been reading your blogs and you are most helpful. I am hoping you can lead me in the right direction. I am a home owner who resides beside a house divided into 3 apartments. The people on the upper floor have a balcony that overlook my yard and stairs that lead down beside my yard - giving them full view into my yard and my windows. I have complained to the landlords about the tenants children throwing food garbage into my yard from the stairs and deck. The landlords indicated they would speak to them and that they had rec'd an anonymous email they assumed was from me with regard to the noise from the main floor tenant and the upstairs tenant. Not two days later the man living upstairs urinated from the deck into my yard - so again I called the landlords. They assured me the would speak to tenants. Now up to this point its been my word against theirs, however I have since put in security cameras at my expense and today l discovered the children were throwing garbage/things into my yard again. I will be sending this to the landlord. However, my question is, can I do anything to the landlords ie small claims etc... I call police on tenants and they shut everything down (noise) before police arrive, my word against theirs for previous urination, garbage throwing in my yard so I am at a loss. I am giving landlords a chance now that I have video but I need to know what steps I can take further. We can't even use our backyard or leave or windows open at night because of noise and things being thrown into yard. I am very frustrated and not sure what to do.

    Thank you for any help you may be able to provide

    Rachael

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  17. Hello, I have a friend who is currently renting a basement apartment in vaughan. Her sister in law comes over every Sunday with her 3 kids from about 1pm - 7pm. Her landlord is giving her a hard time about the noise. Just regular kids having fun noise. How should she respond and does the landlord have a right to restrict her visitors?

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    1. Hi: I don't think the issue here is restricting visitors. It appears that the landlord's issue is the noise that the kids make. Presuming that the landlord lives upstairs ((I'm presuming a house) and there are no more than 3 rental units in the building, section 65 of the Residential Tenancies Act applies (if the landlord doesn't live there or there are more than 3 units section 64 will apply--which is very similar to section 65 except the notice is voidable). That section states as follows:

      65. (1) Despite section 64, a landlord who resides in a building containing not more than three residential units may give a tenant of a rental unit in the building notice of termination of the tenancy that provides a termination date not earlier than the 10th day after the notice is given if the conduct of the tenant, another occupant of the rental unit or a person permitted in the building by the tenant is such that it substantially interferes with the reasonable enjoyment of the building for all usual purposes by the landlord or substantially interferes with another lawful right, privilege or interest of the landlord. 2006, c. 17, s. 65 (1).


      What your friend needs to be concerned about is whether the landlord's concerns about noise are well founded and whether the things being complained about amount to "substantial interference with the reasonable enjoyment of the building for all usual purposes by the landlord or substantial interference with another lawful right, privilege or interest of the landlord".

      Is the noise that the children make so outrageous that any "normal" and "objective" person would say this is unreasonable and hence the landlord is right to complain. If so, then your friend could be evicted for the complained about activity. If the noise is "normal" and any objective person would say this is "reasonable" noise then the landlord's case for eviction would be dismissed. The person who decides whether it is "unreasonable" or not is the adjudicator. The stakes in such a claim are quite high.

      I think it is important to consider that what is "unreasonable" is measured against a context of children being in the premises and not against the landlord's desire for perfect quiet with no children around. The landlord can not demand absolute silence and no noise from kids at all. That tilts towards an exclusion of children from a home and frankly discrimination under the Ontario Human Rights Code. The landlord, in choosing to rent a part of his premises, has to allow for the fact that tenants will have guests and that some of those guests may be children. Demanding perfect quiet from children is not reasonable and while it may indeed bother her landlord--the question is not whether her landlord is bothered but whether a reasonable and objective landlord would be bothered.

      Note that it is important to collect evidence of noise if possible. Some video perhaps, pictures of the kids etc.. For example, if the noise being complained about is because the children are laughing and running around playing soccer in the backyard, I think some photos of them playing in this way would go a long way to showing that the behavior is "normal". Proving, or disproving the severity and loudness of noise is very difficult. Your friend should try to collect such objective evidence as possible---if the kids are angels and the noise is reasonable---you may even get some traction by getting the kids' report cards and see if the teachers comments are helpful in establishing that these children are not little undisciplined hellions.

      Hope that helps & best of luck

      Michael K. E. Thiele
      www.ottawalawyers.com


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  18. HI Michael,
    About 2 months ago my husband and I received a written notice in our apartment door. It was very vague, and indicated that loud noise was heard coming from our apartment. The notice didn't indicate any dates, the type location or time of the noise, but it was cc'd to our landlord (sent by the super). My husband and I were shocked. We try our very best to be good neighbours, never play loud music or tv after designated quite hours, etc. I called the super right away to get clarification on the complaint. A neighbour (most of the residents of my building are seniors) had complained about heavy footsteps from our apartment, that she alleged sounded like stomping. I was quite shocked, at no time could I think of an instance that I'd stomped around my apartment.

    The previous super and mentioned that my downstairs neighbour like to complain about things. Tonight, my phone rang and it was my super. She asked if I was walking in my apartment wearing shoes (I have worn my orthotics in the apartment in the past, but try not during quiet hours just in case that was the source of the noise). I told my super that no, in fact we were brushing our teeth and about to head to bed. Apparently my neighbour had submitted another noise complaint.

    Neither of us could be called small, we are both large. My super couldn't offer any mitigating advice other than "try to step lighter". Michael, I'm terrified that this will somehow escalate into an eviction scenario. Can you tell me A) what to do to protect myself and B) what the likelihood of this happening is? I have never met my landlord (it's a management company), but I'm told their local representative plays favourites with some of the residents. I'm on good terms with my current supers, who told me they only sent the letter/made a phone call because they had to follow up on the complaint. I have terrible anxiety about this, we can't possibly tiptoe around our apartment every evening. Could of normal footsteps constitute significant disturbance? Looking forward to your advice, as this is keeping me up rather late at night (I'll be sure to tip-toe back to bed)
    Thanks,
    Heavy-Feet

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    1. Hi---I was going to say "hi Heavy Feet" but that would make this feel a little too much like Dear Abby. You are in an unfortunate position as you are trying to stop a noise that you can't actually hear yourself. There is no way of knowing what the downstairs neighbour is hearing---in fact, she may not be hearing anything at all. Her motives may be mischievous or alternatively she could be suffering from a mental health problem that is making her "hear things". There are too many possibilities for you to presume that you are causing an actual problem--especially when you know that you take care not to stomp around.

      There are a number of ways to approach this and how you go about it depends partly on your own way of dealing with things. The first way is to simply ignore it after telling the landlord or the superintendent that no one in your unit is stomping on floors etc., and that the allegations are simply false. If you proceed this way, then the landlord will have to decide whether to serve a Form N5 (Termination for substantial interference) or not. If he does, you have to cease the noise for at least 7 days to void the termination notice. If they allege that the noise did not stop the landlord may apply to the LTB for an eviction hearing. At that hearing they will have to prove, on a balance of probabilities that you have substantially interfered with the reasonable enjoyment of the premises by the neighbour. Frankly, on a straight footfall case they are going to have a very difficult time proving their case. Just because you can be "heard" walking around does not mean that they have the right to evict you.

      If the building is poorly constructed then that is a unique feature of the building that the tenants need to just learn to deal with or the landlord needs to fix. You are still entitled to live normally while employing reasonable consideration for your neighbours.

      If you wanted to be a bit more proactive and perhaps sway the landlord to your side, ask the landlord to conduct a test with you walking around on the floor in your unit with the super downstairs listening and another landlord agent watching how you are walking around. Get your spouse to go into the unit downstairs to listen as well. Try different things, while talking on speaker phone, to see what it sounds like, what makes things worse, what makes things better, etc etc.. Whether this happens or not, you should at least propose doing this, in writing, to the landlord. You preface the proposal by making it clear that you are not doing anything improper nor walking unreasonably in your unit. State that the reason for suggesting this is to get to the bottom of what the neighbour is hearing (is it in fact "unreasonable" noise). Or is she in fact hearing nothing at all---wouldn't it be interesting if you can't hear anything with you walking around normally. Test it few different ways if they actually take you up on this.

      The chances of the landlord actually setting up a test, having two staff monitor the unit below and watching you walking around, getting permission from the neighbour to do it and permission for your husband to hear it (and have the opportunity to swap spots) is unlikely. It is time consuming and the landlord likely knows that your neighbour is simply whining. Them writing you the letter (or sending an N5), is them covering their butts so that they can appease your neighbour and say a letter was sent. So, if you are not taken up on your request to test etc., that is perfectly fine. Keep a copy of your written request and should you ever get dragged before the Board on what you feel is an absolutely frivolous application your written request to test and confirm the noises (with no positive response from the landlord) will be very useful evidence in your defence.

      Delete

    2. What if the test is done and it is determined that you walking around, normally, sounds like a herd of elephants (as the expression goes)? In that case your argument is that the landlord needs to do some sound insulating, open up the neighbours ceiling and put something in to reduce the sound. The landlord could also buy and install wall to wall carpeting for you with a thick underpad. The risk to the landlord, in doing an objective test, is to discover that the building has a design/construction flaw that needs to be fixed (at the landlord's expense).

      All that being said, try to start keeping a journal of where you are during the coming weeks and months (specific dates and times) and start keeping all of your receipts for anything you buy or bank slips etc.. The time stamps on these documents can be useful in providing where you were at any particular time.

      Your landlord, in any application against you, is required to provide (with respect to the allegations) a who, what, where, why, when, and how. These details need to be in the N5 that is served on you. With those details, and if your record keeping is good, you may be able to show that no one was home, or that you were watching a movie, or that you were asleep in bed. Knowing what you were doing at the time of the allegation is very confidence inspiring in defending yourself as well. If the landlord can't provide you specific dates, times, etc., then the application will not succeed as you are entitled to these details to defend yourself.

      I hope that helps you a bit. The law does not make it easy to evict and normal living noises do not constitute substantial interference. Just so you know you're not alone, your issue with a complaining downstairs neighbour is incredibly common.

      Best

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  19. Recently, some neighbours moved into the apartment above me. The building has zero sound proofing and they have a grand piano. The noise of the piano is so loud in my apartment that I must wear ear plugs if I want to reduce the volume of it. It is played intermittently throughout the day and evening, and the same piece is played over and over and over.
    I have lived in this building for eight years and am very responsible and considerate. I am beginning to think I will have to move. I have no faith whatsoever in the building manager who should not have allowed the grand piano in the first place.
    I would so welcome your advice. Thanks for the blog.

    ReplyDelete
  20. PS The neighbour who is playing the piano has both mental health and behavioural issues.

    ReplyDelete
    Replies
    1. Hi:

      The mental health and behavioural issues will trigger a duty to accommodate that tenant under the Ontario Human Rights Code. That being said, a disability is not a licence to behave contrary to the RTA. The landlord must still ensure that you have your reasonable enjoyment of your unit. The piano music, to the extent that you describe it, would seem to be entirely unreasonable and therefore be a breach of the RTA. The landlord should serve an N5 and the music must stop. If the tenant does not comply, then the landlord should file an application to terminate and evict. If the landlord refuses to take these steps then it will be you who can take the landlord to the Board for failing to do his job.

      The disability angle, I think has limited relevance in this matter. The tenant could be playing a keyboard with headphones--there is no need to be playing a grand piano.

      Good luck.

      Michael K.E. Thiele

      Delete
  21. Hi Michael,

    My partner and i have been accused of smoking in our unit. We just moved in Jan 1st 2015 and at 30 days into our lease. Our landlord lives above us with his wife and two children ( both children under 3). I smoke however my partner does not. There is a no smoking clause in our lease and when we signed it he had said there is no smoking in the unit he never asked us if any of us smoked. I have not, nor any friends, family members or acquaintances smoked in the unit. I have smoked outside in our private backyard on the patio.

    Starting on Monday he came downstairs accusing us that he smelt cigarette smoke in the house, it was 7:30 am and i just got out of the shower. I asked him to come in and look around. he refused and later followed up with an email stating the clause in the lease regarding non smoking and mentioning if it was to happen again he would terminate our lease and we would be evicted. he mentioned as a live-in landlord he would have no problem doing so and how as an ex smoker he knew the smell of cigarettes. We replied to his email stating that no one has smoked in the unit. In good faith to him and my partner i decided that afternoon that i would quit smoking.

    On Wednesday he showed up at our door around 8 am, my partner was home as i had left for work. he said he smelt smoke again that morning but this time said it was not exactly the smell of cigarettes. My partner asked him in to look around and he did so. he could not find out where the smell was coming from but stood in our living room saying it was strongest in this one spot near the door. He then had said to her that he would be coming back the next morning to investigate again.

    On Thursday he showed up at 7: 30 am to investigate, we let him in. I asked him to look and smell around, he literally smelt our couch, our dinning table, our curtains, our front door mat, our extra shoes by the front door, the intake vent, my cologne and her perfumes, our shampoo ( which is medicated tar shampoo for psoriasis called Denorex) and walked around the unit coming to the conclusion that the smell was still coming form the same area. in our living room near the front door. I asked him to smell the jackets hanging on the back of the door as surly it could have been a residual smell off one of my jackets he said it was not the jacket.

    On Friday (today) , he knocked again at 7 15 am about the smell. I had just got out of the shower and opened the door. I invited him in. as he walked throughout our entire house main floor and basement he still said it was coming from the same spot. At this point my partner and i are frustrated as there is nothing in that area that he has not smelt nor anything besides a vent our couch and a fireplace that we have never used. I asked him if his wife was smelling what he is smelling and he told us no.

    My partner and i are at a loss for words in this situation. I have not smoked since monday afternoon and not smoked anywhere on his property since Thursday evening of the week prior. We feel like prisoners in an apartment that we love (aesthetically at this point) we have made major purchases to furnish the space and at the cost to feel threatened of eviction for doing nothing wrong.

    at what point does this become harassment? at what point does the madness stop?

    any light you can shed on this would be great.

    regards,
    -

    ReplyDelete
    Replies
    1. Hi: Your landlord's behavior is troubling. He is making a regular habit of showing up in your unit and I think that is simply unacceptable. Before stopping him from doing it again, I'd be ready for it one more time and I would be inclined to record the entry to prove your cooperation and to establish that he has been in the unit to check on the "smoking".

      After that, I think your cooperation in letting him come in and snoop around can come to an end. You are not required to grant him entry. If he knocks you don't have to answer or you can answer and tell him "no". There is no absolutely correct way of dealing with this---as you can see from cooperating and letting him snoop--that didn't solve anything. You will have to rely on your legal rights more as "common courtesy" and "normal behavior" is apparently not going to work.

      Your landlord's comment that he will terminate your lease is not as simple or likely as he would have you believe. While it is easier to evict a tenant from a landlord occupied building containing 3 or fewer units it is not automatic. For smoking violations in non-landlord occupied buildings the landlord would use a Form N5. In your case, presuming it qualifies as a small landlord occupied building the form is a Form N7. The N7 is not voidable and only gives 10 days of notice---that however is effectively meaningless. The form tells you that if you disagree with the Form that you do not need to move out. Simply stay. If the Landlord wants you out the landlord must then apply to the landlord and tenant board, get a hearing dates weeks later, and presuming he wins the adjudicator may still give you a reasonable amount of time to get out.

      Presuming the landlord "wins" is not an obvious or reasonable assumption to make. The landlord will have to prove the allegations against you. Can he prove that you are smoking in the unit? He will have to prove it in order to win. He said, she said--credibility contest are high stakes hearings. Tilting the odds in your favour is a good thing to do. You do that with the video of him being invited into your unit to look for smoke. You will testify to the fact that he has done this a number of times and that you have willingly invited him in. If he admits it, and admits finding nothing, then you win. If he denies entering your unit to inspect and in fact conjures up a fanciful story you could rely on your video to discredit him--you do this by asking him first to confirm what he's said and if he denies your cooperation you play the video for him and the adjudicator and ask him whether that is him in your unit.

      Anyway, I hope that helps a bit. Unfortunately, your landlord seems to be irrational and I'm not sure that you will find peace and happiness in this unit for any great length of time.

      Good luck

      Michael K.E. Thiele

      Delete
  22. My wife and I purchased a 5 unit multi residential building last month under a holding company name with the intent of me moving into 2 of those units. There's an old door between the two units that I would have to reopen. We took possession on the 30th of Dec. and would have had to serve them both with N12 on the same day. Since we're new at this we didn't get it done right away and now had to wait until today at the latest to serve them the N12 and to respect the 60 days I need to give them. Since I could wait, I did and it gave me the time to have cooperating tenants as I started to address some of the maintenance issues that needed to be addressed.

    The problem I'm now facing is the tenant in 1 of those units has started to complain about noise from the people above her. The people above her are complaining about this woman opening her front door, screaming obscenities at them for smoking on her front step (they share the same entrance) and slamming the door before allowing the screamed at person to respond. She also says the doors gets slammed all day, and there is often an overwhelming smell of marijuana throughout the hallway. To complicate things the bottom tenants son lives on the 3rd floor, so now the son and mother are teaming up on the middle tenant and its getting ugly.

    I'm planning to serve the N12s today but I'm afraid the bottom tenant will try to play the victim card when I fully believe her to be the problem. We did mention it to the real estate lady at the time that I was planning to occupy both units, so we can prove that this is not just retribution for the complaints she's been calling in.

    It should be said that she complained yesterday at 11 am saying that the people upstairs were running around for 20 minutes and it was driving her crazy. Again last night, she called and said that she could hear them saying "bang your feet harder and let's piss off the bitch". I called the the middle tenant and she said she had her 1 year old granddaughter visiting for the day and she had been there for 20 minutes and she was playing with a ball and chasing the cat. I had to call again last night after the second call and now this tenant is thinking of finding somewhere else to live. This middle floor tenant did say she is willing to testify at the board.

    My question then is how should I best deal with this? I've asked them both to keep detailed logs and video/audio recordings as needed, but since I need the bottom unit vacant, should I also serve her a N5 for interfering with the reasonable enjoyment of my other tenant and/or also a N6 for illegal use regarding marijuana use even though I have no proof of that? Lastly will the fact that the building is legally owned by a holding company impede the N12 process even though my wife is the acting president and only officer?

    All this is happening in Ontario. Thanks

    I forgot to mention that the bottom unit and her son (and his girlfriend) in the top unit are all on ODSP

    ReplyDelete
    Replies
    1. Hi:

      Lots of interesting and potential hiccups and it seems that you are at least aware of some of them. It seems that regardless of what you do, you won't be able to keep everybody happy. To that end it seems that you should focus on doing what you want to do--which is move into the units. Proceed with your N12---take a look at section 48 RTA as that is the legal basis for the termination. You are correct to raise the problem with a corporate owner seeking residential occupation. A few years ago your application would have been doomed. Today, after the case of Slapsys v. Abrams [2010] O.J. No. 4452 (Ont. C.A.), it seems clear that an N12 can be served by a corp. on behalf of a sole shareholder.

      Should you serve other Notices of Termination? Yes, No, and maybe. If the evidence is clear-cut and you can establish the allegations then I would be inclined to serve. If it is all innuendo, credibility, and there is a lack of objective evidence then I'd be inclined to hold off on serving Notices (what is the point if you can't prove them?). Your request from the tenants to keep detailed logs and collect evidence is wise. If that evidence demonstrates something that is clearly a violation then proceed with other notices.

      With respect to the 60 day period in the N12--you are presumably aware that this is a minimum notice period. The Board may very well extend the date. Given what is going on in the building I'd recommend serving the N12 and then filing an application to the Board without delay so that your N12 is backed up by an eviction Order. If you wait to file only after the termination date it is likely that the delay will be even longer as the Board gives the tenants more time.

      Don't presume that you will be successful in the application. Get the evidence you mention from the real estate agent--demonstrate if possible your intentions (through plans, meetings, drawings, agent discussions) and have the back up at the Board. The tenants may indeed try to challenge your good faith and it will be good to have the evidence to prove your intentions with you at the hearing.

      Good luck

      Michael K. E. Thiele

      Delete
    2. Thanks for the quick reply Michael. It is much appreciated and helpful.

      Delete
    3. I found "Slappys v. Abrams" on canlii.org and I found "Melhuish and Walsh v. 580472 Ontario Ltd. and Strelchuk" on another website. The ltb.gov.on.ca website also quotes other cases including "Megan Investments Ltd. v. Funston" and "Duke’s Trailer Court Limited v. Block", but I am not finding these!

      Where would I find these reports?

      Delete
    4. Hi: These appear to be older cases (older than www.canlii.org) so they are not necessarily included in the free canlii database. If you look at this case http://canlii.ca/t/fwl9b on the Canlii site it is a more current case that describes the two cases you are referring to. You may be able to find other cases in Canlii that refer to the decisions in greater detail.

      Otherwise, I am not aware of how you can get the cases for free electronically. There are paid databases like Quicklaw and Carswell that would likely have them but you need a subscription--maybe check to see if they sell individual cases on a per search basis. If you are near a law school you could get it at the library presuming it is open to the public.

      Michael K. E. Thiele

      Delete
  23. In need of help here.
    So I'm being evicted for kids noise. I live on a second floor apt and my kids are jumping running banging on the floor. I try to stop them by repeating myself not to do it bc of the ppl downstairs. My kids are 2 and 5 and 9 months. Not so much that I can do to stop this unless they move me on to the bottom to keep the peace all around. With the amount of banging on the ceiling from them I have befreinded the girl blocked them from Facebook and others in my apt to solve all issues but one girl. I posted on there thatif they bang on the ceiling tmrw iI'm gunna break some arms with a wink and saying I'm not joking... as I'm writing back and forth in the comments I'm actually stating that I would not do that, I do not want to see any of there faces. I don't want them coming to my door to talk. I did receive one n5 about the noise and was talked about it once. Now I got a 2nd n5 yesterday and the one "threat" was brought to the landlords attention. She went snooping thru my stuff thru someon else in my building knowing that I said that. I got rid of her and few others that would tell her but that wasmy way to vent and get peoples opinion on what I'm dealing with cuz it's a constant battle. So now I received a 2nd n5 stating a few lies regarding threats and it's posted on media the last two days, app there scaredfor there safety. I had my neighbour on my floor go down and bring her this letter I got. She states she never said anything like this. But the one arm threat that I was gunna break them. I have 3 kids I'm not gunna risk loosing them but I'm fed up. What do I do. Landlord is giving me 16 days as of feb 2nd to move out bc she states there is no other option. Meanwhile all the false accusations aren't Tru according to the lady downstairs. Now they want me out and I'll be homeless w 3 kids ?

    ReplyDelete
    Replies
    1. Hi: There really isn't anything that I can say in this reply that will give you enough help to do this case yourself. You absolutely need to have a lawyer. The facts you describe are open to interpretation and I don't think the landlord has a slam dunk for eviction. However, you will need to fight this properly and you will need an experienced lawyer to work on this for you. I'm not sure where you live but I hope you have a legal aid clinic nearby that is prepared to help you. Try that and if not, see if they can refer you for a legal aid certificate so that you can retain a private lawyer.

      Good luck

      Michael K. E. Thiele

      Delete
  24. Hi Michael,
    I am a landlord who lives in a bungalow with a basement apartment. Last fall, after my son went away to university, I downsized & moved into the basement apartment & rented upstairs. The family upstairs is very noisy They have a 8yr old boy who is constantly running. I asked them to speak to him about walking in the house. Dad tells me he allows his son to run in the house on the weekends. I lived upstairs for 10yrs with my son & he was taught to respect the tenants I had downstairs by not running.
    They seem to take evening naps & then after 10pm they start moving things around till midnight. I had the rooms carpeted but they are still loud.
    Their lease is up June 30th. I do not want to renew them. What are my options.
    Thank you

    ReplyDelete
    Replies
    1. Hi:

      In Ontario tenant's have security of tenure. This means that they have the unqualified right to stay in their apartment even after the lease expires. This is the case even if you agreed to the contrary at the time of entering into the lease. It is legally impossible to agree to terminate a lease at the time that the lease is entered into. Hence, if your tenants wish to remain in the unit after the lease expires there is nothing you can do to "refuse" the automatic renewal of the lease on a month to month basis.

      Security of tenure and the automatic right of renewal of the lease is subject to the tenant complying with his/her obligations under the lease. If the tenant breaches any of his/her obligations then the landlord may serve a Notice of Termination under the Residential Tenancies Act. Unless, as the landlord, you can find a reason to serve a Notice of Termination--for the grounds set out in the Residential Tenancies Act you will not be able to terminate the tenancy.

      The Notices of Termination include "fault" based notices such as Non-payment of rent (form N4), Substantial interference like noise and furniture dragging (form N5) or non fault based notices such as Landlord's own use--meaning landlord wishes to move into the unit (form N12). The point is that you need to find grounds in the RTA to terminate the tenancy. Simply not wishing to renew their lease is not a legal option.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  25. I live in a high rise apartment building. I emailed the property manager to ask advice on how to deal with loud noise after midnight coming from the apartment above me. The property manager, without my consent, sent a letter to the upstairs tenant regarding the noise and threatening to take them to court.She also identified me as the person who "complained." I did not complain, I asked for advice! Do I have any redress given that the property manager said I had made a complaint when I had not, and also identified me without my consent?
    Thanks. This blog is a godsend.

    ReplyDelete
    Replies
    1. Hi: I'm sorry for your experience as being identified as a complainant can lead to uncomfortable situations for some tenants. If the upstairs neighbours are particularly uncouth you desire for anonymity is understandable. It is a bit surprising to me that your landlord would not understand this and maintain your confidence without getting your explicit permission to reveal your identity.

      That being said, "privacy" under the RTA is not broadly or explicitly defined right or concept. Certainly, there are privacy rights cases but I am unaware of any cases that deal with exactly your situation. If the consequence of revealing your identity is something significant you may consider filing a T2 application to the Board. This is especially the case if the landlord should have known that revealing your identity to these particular tenants would lead or would likely lead to retribution.

      Good luck.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  26. Hi Michael. Very helpful response - thanks. On the matter of privacy, this same landlord has disclosed to me personal information about more than one other tenant in this building. Would this be a breach of privacy?

    ReplyDelete
    Replies
    1. Hi: I do think that disclosing personal information to you, about another tenant, is a breach of that tenant's privacy. As I said before, the notion of "privacy" in Landlord and Tenant law under the RTA is not very well defined. The cases tend to deal with privacy breaches in the context of "harassment" which is a ground for an application under a T2 application. Any example of a privacy case is in Tenant of 328 Spring Garden Ave., Toronto v. Varki (12 March 2008), File No. TNT-00663, Jepson (O.R.H.T.)---in that case the landlord contacted the tenant's sister to discuss the tenancy and the Tribunal found that this interference with the tenant's privacy constituted harassment of the tenant and substantially interfered with her reasonable enjoyment. The Board stated that the landlord should not have contacted anyone else to discuss the tenancy without the tenant's express permission.

      There are a few other privacy cases---older now---at the Board level respecting the taking of pictures in the rental unit as well. That being said, all of the decisions I am aware of, respecting privacy, are first instance decisions without any guiding appellate authority.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  27. Hello,
    me and my girlfriend lived in the main floor of a house for 3 years now and we always had noise issues. The landlord always says that he will fix the problem but he never does. We had a couple one year that was playing loud music and having parties and every hour and every day of the week. We used to call police and when they showed up, they never did nothing besides telling the people to turn down the volume. We stayed. We use ear plugs always because we want to to avoid to be woken up by these people when they return from parties drunk etc. We now have a problem with people living in the apartment above. They constantly stomp on the floor since morning to late night (2am), door slamming and loud talking. We spoke to them but it doesn't seem to help. What should we do? We don't have money to move out. Thanks in advance for your response.

    ReplyDelete
  28. hi Micheal

    Me and my fiance are living in an apartment in ottawa and are dealing with a noisy neibour for what seems close to a year. We have talked to our landlord several times about this and seem to get the same answer from him all the time. His answer is oh it takes for ever to get someone evicted because of the tribunal system. This has been going on for months on end with numerous calls to the security company that deals with the after hours calls and have filed numerous reports about him. I am wondering just how long it actually takes for the process because this has been going on for far too long.

    ReplyDelete
    Replies
    1. Hi: Thank you for the question. How long it takes to go through the Landlord and Tenant Board system will vary around the province and be different even in the same parts of the province depending on the current caseload of the Board at the time an eviction application is filed.

      I'll run through the time line for you. For noise the process is a Form N5 which is a Notice of Termination for substantial interference with reasonable enjoyment of the premises. The landlord receives the complaint from the tenant and based on that information fills in a Form N5. With experience, the form filling process will take perhaps 20 minutes if the required complaint details are at hand. That first N5 gives the tenant who is making the noise 20 days notice--meaning the tenancy is terminated 20 days after the service of the N5. However, for a 1st N5 notice the tenant who received the N5 can void the termination of the tenancy if they stop the behavior that gives rise to the complaint. If in the 7 days following delivery of the first N5 notice the tenant does not substantially interfere with the reasonable enjoyment of the tenancy by other tenants (i.e. you), then the first N5 notice is void.

      If the tenant does not stop the noise within the 7 day period then the Landlord applies to the Board based on the first N5. You would get a hearing date within a few weeks (in Ottawa).

      If the tenant did stop the noise within the 7 day period (therefore voiding the first N5) but within 6 months of the service of the first N5 notice the tenant again substantially interferes with the reasonable enjoyment of the premises then the landlord may serve a 2nd N5 Notice. In this N5 notice the tenant will be given 14 days warning of the termination of the tenancy. There is no way to void this Notice of Termination. The landlord should apply to the Board immediately following the service of the N5. Currently, in Ottawa, you would expect to get a hearing date within two to three weeks of filing the application. The application form used is a Form L2.

      If the evidence against the tenant is strong and the allegations do amount to a substantial interference with reasonable enjoyment then you could expect an eviction of the tenant within a few weeks of the eviction hearing before the LTB. You would have to attend to give evidence. If the case is proven, but considered weak, or the tenant complained about has a really good plan to stop the problems, or there are other meaningful factors that need to be taken into account the adjudicator can refuse eviction, delay eviction, or put conditions on the tenancy continuing. The point is that the adjudicator's job is to "do justice" from an objective perspective. Sometimes that means immediate termination and eviction, sometimes it means refusing, and sometimes it means something in between (i.e. delay or imposing conditions to continue).

      The foregoing may seem convoluted and confusing. N5's are probably the most difficult termination from a technical perspective. However, once you get a handle on them the system does make sense. For your purposes, the whole process (based on legitimate complaints that you are prepared to back up by giving evidence at hearing), should take about a month or two depending on whether the tenant takes advantage of the right to void the first eviction notice by stopping the noise.

      Hope that helps you understand the timeline. Let me know if you need any clarification.

      Michael K E. Thiele
      www.ottawalawyers.com

      Delete
  29. My wife is a superintendent of a rental townhouse complex. We live next to a noisy neighbor who we have tried
    to reason with but they will not comply. We have given my wife's boss ( property manager ) letters in writing
    regarding our concern, however, he responds by telling us that we are not considered tenants because we do not pay rent and without another tenants complaint he cannot do anything legally to correct the matter. Our
    dilemma is that the noisy neighbor lives in an end unit and there really is no other neighbor who is affected by their ongoing noise. I feel like as a result we do not have any say or right(s) to peace and quiet.
    Is there anything we can do as residents to be able to have a right to peace and quiet? Please advise.

    ReplyDelete
    Replies
    1. Hi: The property manager is mistaken about the need for a tenant to be disturbed by the noise. You may use an N5 (Notice of Termination) for the noise, even if the only person being disturbed is the Superintendent. I expect that your property manager would know this and that he is not really interested in taking action based on the excuse he used with you.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
    2. Thank you, You have been very helpful.

      Delete
  30. Hi there. I have been living at my apartment for several months and my neighbours (students froma Middle Eastern country) and their friends who live on the floor below are banging doors and mail slots everyday. They scream and talk loud on the balcony until 1 or 2 am. I have to go to bed at around 11 pm and these people would not stop talking and smoking weed. I talked to the concierge about this situation and he said that in fact he needed one last complaint from someone in order to send them a notice. Nothing has heppened as of yet and these students won't stop the noise. Where are my rights as a tenant? What can I do? I am paying a lot of rent to live in that unit and I do not want to move out. Thank you for your response.

    ReplyDelete
  31. Hi. I just moved to an apartments building in Kitchener. I am renting one underground parking spot for 40$/month. Last Saturday someone smash 26 cars included mine in this underground parking lot. I was talking with the landlord to change the old school keys with electronic Fob Key system and also to install some cameras in the underground parking lot and he said to me: "is not his business and he doesn't care".
    He told me i have to deal with the police.
    Also the neighbours from the building told me, 6 months ago it happen again but at that time they smash only 7 cars. Please tell me what are my rights and what can i do because i don't feel safe here. My rental contract is one year and I am afraid this will happen again. My insurance even if is full coverage has 500$ deductible. I had to pay all the damage from my pocket. Also they still my wallet with all my id's. That's why I was renting this underground parking spot because i was thinking is secure but was not. Thank you

    ReplyDelete
  32. My partner and I rent a basement suite in a bungalow. My landlord lives upstairs with his wife and 3 year old daughter. His daughter is constantly running, jumping and stomping throughout the house. The noise starts as early as 7am and does not end until 9pm. The thing is I have a 9 month old baby who goes to bed at 7pm every night. The stomping and jumping from upstairs keeps my baby awake at night. The noise from upstairs also wakes my baby up from her naps in the afternoon. I asked the landlord several times to put carpeting down, discourage his daughter from running, have her go outside, etc. The landlord simply says he is sorry and then lets his kid continue to run throughout the house. It's getting to the point where I have to complain to the landlord every day. What else can I do? I can't enjoy my space with all the thumping

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    1. Hi: It is difficult to be a tenant when the problems are being created by the landlord. The RTA does apply to your situation if you live in a complete separate unit and do not share a kitchen or bath with the landlord. As you have spoken with the landlord and no change is happening then you have to consider an application to the Landlord and Tenant Board. The form you would use is a form T2. Of course, proceeding to file an application against your landlord is unlikely to do much to endear you to him. It might just be the beginning of the end of your tenancy. That being said, if the situation really is intolerable, there doesn't seem to be a downside to bringing the matter to a head.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  33. Me and 5 other friends live in a house together while we are away at school and being 19-21 we all drink on weekends. The old tenants that use to live here were far worst then us and caused MANY issues and damage to the house and created problems with the neighbours. This of course was now pasted onto us and our landlord has received 2 calls in 4 months from the neighbours about us being too loud. Now in our defence we got the call placed on us at 10pm canada day long weekend with 6 people in total sitting around in the garage with the music at a moderate volume. Anyways, our landlord has emailed us about the issue and threated us with a N5 but according to any law i've read we have breached any laws... no tenant has issues with noise, just close by neighbours and the landlord doesn't feel any less enjoyment as we both worned him before we had a few people over and he hasn't come by the house since we moved in. Am i correct that if a N5 was issued it would be voided because we didn't breach any laws?

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    1. Hi: I think I understand what you are getting at and you are correct. The N5 notice may only be used for disturbing the neighbours if the neighbours are also tenants of your landlord. If they are tenants of another landlord (such as in a condo building), or if they live in a house next door as owner or tenant of a different landlord next door then the N5 complaining about noise ( on the basis that the noise is substantially interfering with their reasonable enjoyment of the property) is void.

      The neighbour's recourse is to call police or by-law. They need to deal with you like you are a property owner.

      Michael K. E. Thiele
      ww.ottawalawyers.com

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  34. Hello, my friend is renting a two bedroom basement. It is a two-storey house in Vaughan, Ontario and the owners live upstairs. She moved in there October 1st, 2014 and her contract is for one year, and so her contract is up as of October 1st, 2015. She has now given her 60-day notice on August 15, 2015. According to the Ontario landlord/tenant board she still needs to pay her landlord until October 31st which she understands. Because her contract ends on October 1st her landlord has been demanding that she sign a new contract for that one month because she wants to increase the rent by adding 40% of utilities. By law does my friend have to sign this new contract for one month? or can she just pay her landlord the regular amount she has been paying the past year? TIA

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    1. Hi: Thank you for writing in. Your friend does not have to sign a new contract and in fact shouldn't. If you friend has a last month rent on deposit this will be applied to the last month that she is in the unit. Her term goes month to month after September 30, 2015. September 30, 2015 is the last day of her fixed term one year lease. October 1, 2014 was the first day, rent was due on the first of each month for the next rental period of one month. Hence, the lease period ends on the last day of the month.

      Because your friend gave her notice on the 15th of August the earliest effective date is October 31, 2015--it is 60 days to the end of term. Your friend should use the N9 form (Tenant's Notice to Terminate). There is a guide that goes with it and there are notes at the bottom to explain the correct date for termination (end of a rental period and not the 1st day of the month). This is very important to get right as the wrong date can make the notice of termination void.

      With respect to the landlord's wish to raise the rent she is simply out of luck. Unless she serves your friend with a form N1 (Notice of Rent Increase) she can't raise the rent. The Form N1 can only be effective 90 days after service and it needs to be effective for the first day of a rental period. Hence, the earliest that the landlord can raise the rent (if she served a notice today--August 16, 2015) would be December 1, 2015. The landlord can not raise the rent until the N1 is served and 90 days has gone by. Until then it is the old rent.

      Hope this answers your question.

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Michael,

      Thank you so much for taking the time to answer my question. I have given this information to my friend and because of your response she will sleep better tonight!

      Delete
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  38. Hi Michael,

    I just rented an apartment in my own duplex to a University Student, she moved in but we have not signed the lease yet, i guess mistake on my part based on trust. I don't think she will refuse to sign the lease, but I am having second thoughts about her. I think she is a good tenant, but her friends and acquintances are much to be desired. She works in a bar, and today there was an empty bottle of whisky on the table, and people were coming in and out non-stop - likely the same three people, since this is what I counted. I have a gut feeling that this is going to turn into a nightmare, and I would just like to wake up before it started. Is there anything I can do in this situation. I would not be able to stand the noise at all. I was lucky with my previous two tenants who were very quite, and I am just not going to last like that. It seems like an unregulated relationship at this point, and I am not sure what to do: press to sign the lease with many extra conditions to regulate the behaviour or just ask her to leave - I am not sure if I am allowed and not sure what the response woiuld be. She still has not paid the second month of the deposit, perhaps, this could be a reason. Any advice would be greatly appreciated. Thank you.

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    1. Hi: Unfortunately, I don't think you are going to like this response. Based on what you have written here it appears to me that you have entered into a tenancy agreement. By not signing a lease but putting the tenant into possession the Landlord and Tenant Board will very likely find that there is a tenancy agreement. Because there isn't a written one, the Board would find that there is an oral one or an implied one from the circumstances. Under the Residential Tenancies Act, a tenancy agreement may be written, oral, or implied. All are equally valid. Given that you have received payment of the first month's rent and put the tenant in possession I don't realistically see you being able to end this tenancy by your own choice.

      You may of course put a lease agreement to the tenant. If the tenant signs and the lease reflects the "deal" then this will become your agreement. However, inserting strict conditions in the lease now to deal with the issues you fear will arise will be difficult. Firstly, the tenant may simply refuse to accept those conditions and hence will not sign the lease Secondly, imposing strict conditions without the acceptance of the tenant can lead to the lease being challenged under the RTA. Clauses that contravene the RTA are void.

      On the issue of the deposit. I presume what you are describing is that the tenant has not paid the last month's rent deposit? You are calling this the "second month of the deposit"? If so, you are frankly out of luck in ever getting a last month's rent deposit now. The deposit must be collected before the tenant moves in. There is no basis to terminate the tenancy after the tenant has moved in for non-payment of the last month's rent deposit. If you ever do this again, you should collect the last month's rent deposit first and let the tenant's move in owing you the first month of rent. If done in this order you can evict for non-payment of rent if the tenant does not pay. You can not evict for non-payment of Last Month's Rent deposit.

      The law is not going to be very helpful to you at the moment. Consider building a positive relationship with the tenant and see if you can be good neighbours to each other. She has her obligations under the RTA, regardless of whether a lease is signed or not. That being said, a whiskey bottle on the table and having three friends coming in and out--seemingly non-stop even, is not a basis for termination of the tenancy. You can't evict for your fear of anticipated problems.

      You may of course ask the tenant if she would agree to terminate. To do that you would need to sign a Form N11. Under the circumstances, I would expect that you would have to pay her to agree to terminate the tenancy.

      Good luck

      Michael K. E. Thiele

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  39. Thanks for the response. I actually have not accepted her deposit yet, and it is not designated as a first or the last. I can always call it the last deposit, I am not sure how one can say otherwise, and then the issue that you are describing will still remain - she owes the first month of rent. And even if the deposit she paid is the first deposit - however it is detemined - i am not sure why would not she pay the last month of rent when it comes due. This is rent, after all, what is so special about getting it upfront that prevents it from being received later. And when I talk about strict conditions, I am not talking about outlandish requirements. I have neighbors too, who will flock to me with complaints, so all I mean by strict conditions is first and foremost respect to the landlord and the neighborhood. She is not going to live in isolation after all, and there is no supremacy of one person's rights to party over everyone's other rights for peaceful living. I also feel that she misrepresented herself on her application. I wonder if there are consequences associated with forging information on the application form - such as forging the names of the previous landlords and asking friends to act for them. After all, she has signed the application stating that the information is truthful. Is there a way to act through that - I would need to prove that first, of course. Your comment would be appreciated.

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    1. Hi: She is in occupation of the unit and she has provided you with a payment---as I understand it. If she takes the position that this is the rent for the month then you have no legal recourse to collect the last month's rent deposit. The RTA does not allow for termination to collect an LMR. It just doesn't work that way. If your agreement with her is clear then perhaps she will pay the LMR and all will be fine. I wasn't suggesting that she wouldn't pay--I'm just laying out what the legal landscape looks like.

      The issue of strict conditions--whether they are or not etc, is all very nice. The legal fact is that your tenants do not have to respect you nor the neigbourhood. Even if you want to impose that obligation, every person's interpretation of what that means likely varies. Your tenant's obligations are set out in the RTA. Start with Part IV--entitled Responsibilities of Tenants. Then you have the other grounds for termination which include--nonpayment of rent (s. 59), Illegal Act (s.61), Damage (s. 62), interfere with reasonable enjoyment (s.64 &65), impaired safety (s. 66) and then the not for cause termination notices. Each of these sections has been considered by the Landlord and Tenant Board a great many times. The scope of what counts as a breach under any of these grounds is fairly well known. Writing your own terms into what you think should be included as respect to landlord and to the neighborhood is very likely open to challenge. With respect to the neighbourhood, there is no eviction power under the RTA to evict the tenant for the things your neighbours might complain to you about. Your tenant for all intents and purposes is a homeowner just like every other homeowner on the street and the homeowners need to get along with each other or the recourse is to the police and the civil courts. You, as the landlord, are not the policeman for the neighbours over the behavior of your tenants. I know that this is a highly contentious issue in many neighbourhoods but the law is clear. The Residential Tenancies Act only concerns itself with things that happen on the residential complex and with how tenants treat other people on the residential complex.

      Misrepresentation in rental applications is an interesting issue. I'm not aware of any caselaw on the issue so would have to research it to give you a definitive answer. A gut reaction though is that there would be no basis to terminate the tenancy for a misrepresentation in an rental application. The misrepresentation will have occurred prior to the formation of the tenancy agreement. The misrepresentation may be considered "illegal" by the RTA definitions but it did not happen during the tenancy agreement. It is difficult to see what the tenant is doing, after the formation of the tenancy agreement, that fits into the termination grounds set out above. That being said, I do think that a fraudulent misrepresentation leading to the formation of a tenancy agreement should be grounds to terminate the tenancy agreement.

      Good luck
      Michael K. E. Thiele

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  40. She also actually left the keys to the apartment in the exterior entrance door facing the street. These actions jeopardize my safety, and her own safety as well.

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    1. Hi: Arguably an N5 Notice of Termination--though highly unlikely that a Board member would find this to be enough to terminate a tenancy.

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Hi Michael,

      Thank you for your follow-up. Were you able to find anything about misrepresentation?

      I guess my question is what are the reasons based on which an applicant can be refused to be rented an apartment to? At this point I believe that the landlord's only protection is to say that the apartment is already rented out, because legally when one has an application one cannot even say that the lifestyles of the landlord and a tenant do not coincide and refuse based on this.

      I have noticed that the Act has only one mention of small dwellings less than three units. Should not there be an allowance to discriminate based on the fact that in my case it is an up and down duplex, and when a tenant lives on the second level in a wooden frame house, they will be significantly affecting the quality of life of the landlord by their actions (the argument goes both ways of course). I am not sure why the Act does not make more discrimination, and I am wondering if landlords of such up-and-down duplexes should be allowed more discretion in choosing their tenants. Then, if the information the tenant or his/her references are providing is a misrepresentation this has significantly more severe consequences for everyone, compared to the situation when this is just an apartment building with many more units. If a reference says a person is quite and the person turns out to be a "party animal", and later acknowledges the difference in lifestyles, this is a clear misrepresentation, especially if the previous landlord then comes to one's property and parties with the tenant.

      Your comment on that would be greatly appreciated. Thank you.

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  41. Hi Michael, I have a two-storey home in Vaughan Ontario. As of June 31st, 2015 I have rented out the full house to one family. On the lease it does say that the renters have to pay all utilities as they are the only ones living in the house and using the utilites. Before they moved in I made sure they changed all utilities into their name and everything was fine. I just received a bill for the rental of "water heater". My water heater is a rental. I then called the company to find out why I was receiving this bill. The person who I spoke with looked into the file and told me that they have a note in their system that says that my renter called them on July 13th and told them to change the bill to my name so that they don't pay for it. I then called and spoke to one of the family member (which is not the person who called the company to change the name back to me) and asked why they did this. The family member I spoke to said they are not aware of this and will get back to me. I fully explained again that this is something that they need to pay for as I do not own the water heater and it is heating the water they are using. It has been two days and not heard back from the renters yet. I just need your advice before I call them back to find out what their response will be. Is this not a payment that the renter should be paying? Just wondering what to do next because I do not think this is right....and what can I do if they refuse to pay for it. TIA

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    1. Hi: The cost of utilities is very different from the cost of the appliances through which the utilities flow (i.e. hot water heater, furnace, electrical system, water pipes). What exactly does your lease say about this. If the lease is not crystal clear about who pays for the hot water heater then you will be responsible for the cost.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  42. Hi Michael

    The Situation

    We have a duplex. One apartment (41) over the other (33).
    On a number of occasions the main floor tenant (33) has made noise complaints.

    Description: Foot traffic, slamming cupboards to dropping things on the floor. No parties, loud music, loud tv's and yelling.

    Time of day: 10pm - 2am on a semi-regular basis.

    History:

    Since the tenants moved upstairs, 33 has made several intermittent noise complaints.

    December 2014 - verbal complaint from 33, response - Conducted noise test and determined that under normal circumstances noise levels were consistent with what one should expect in an old two unit building. spoke to 41, 41 was agreeable. Provided 33 with a digital audio recorder so that they could gather evidence of their complaint. we never got any evidence and she still has the recorder.

    May 2015 - verbal complaint from 33, response - asked 33 to fill out an incident form after which we spoke to 41. 41 was agreeable.

    September 2015 - verbal complaint from 33, response - asked 33 to fill out another incident form.

    Notes:

    1) 33 can be very challenging. It is not uncommon for them to call four times in a day if she hasn't heard back from you.

    2) I haven't proceeded with supplying 41 with a N5 because I am not exactly certain how much of what 33 is saying is true. Her husband is her only corroborator. Added to which, she has complained about flushing toilets in the middle of the night. Flushing toilets were tested and the noise generated barely audible. So if she is complaining about this, is she overreacting to other things?

    3) Despite point 2, I do believe that there are times that 41 could be a bit more considerate.

    4) Added Complications - One of the tenants of 41 stays up late and sleeps during the day. The other tenant of 41 will be starting night shifts (snow removal) as soon as the snow flies.

    5) 33 is now verbally chastising 41 every time a deemed noise disturbance is made. This occurs throughout the day if I understand correctly.

    6) 33 has a dog, that we know barks from time to time.

    7) 41 seems pretty easy going and doesn't want to make issues which is likely why they don't complain about the dog. They have mentioned the chastising to us but have not authorized us to take corrective action.

    Questions:

    1) What are we legally required to do in response to 33's concerns considering our reservations?

    2) Can we even issue a N5 considering we are not talking about loud TV's, stereos, parties? I couldn't find a definition if you will of how far one can go with these types of complaints. Do you have a definition of noise that you can refer us to?

    3) This is a he said/she said situation. How do we resolve that so that we can get to the bottom of this?

    Thanks Greg....

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    1. Hi Greg: You have an obligation to take complaints received seriously. Most importantly, you also need to be able to demonstrate that you took the complaints received seriously. This means an investigation of the complaints, some notes about who you spoke with, when you spoke to them, what was said, where you did it, and the why you did it. Note your conclusions and what led to your conclusions. Your notes, the evidence, the conversations, the conclusions, the agreements as reflected in your notes should demonstrate that you took the complaint seriously and acted reasonably. Testing the flushing toilet is a good objective test and demonstrates that you are a responsible landlord. This is what you need to be able to demonstrate to the landlord and tenant board if the complaining tenant should choose to take you to the Board for failing to do your job.

      If the evidence does not support the complaint, or if the entire issue is inconclusive as to whether the complaint is well founded then in my view it would be improper for you to serve an N5. Serving an N5 that contains allegations that you know you can't prove is in my view wrong. It is also a complete waste of time and it may, in fact, jeopardize a proper application or notice that subsequently arises. You are entitled to conclude that the complaint is unfounded or that there simply isn't enough evidence to determine that the complaint is well founded. Make a note of your reasons and keep them.

      In response to the complaints received you should inform the complaining tenant the results of your investigation---in broad terms. You might want to suggest to the tenant that you need corroboration of the allegations and that they should call by-law if they feel there are noise violations so that by-law will press charges. If a by-law officer hears enough noise to lay a charge you will be able to call that officer in support of your allegations against the tenant in an N5. You don't have to give the complaining tenant the full scope of your investigation or the exact nature of the conversations you had. However, you should not ignore the tenant entirely.

      There are no specific sections of the RTA setting out the exact steps that you must follow. Your obligation to do something arises from the fact that each of your tenants has the right to quiet enjoyment of their rental unit. When a tenant is bothered by noise etc., they do not have quiet enjoyment of their rental unit. As the landlord it is your obligation to give the tenant quiet enjoyment and it is you, as the landlord, who has the power to through termination notices to enforce the right to quiet enjoyment. This is all broad strokes without any explicit rules of how you do it.

      I think the answer is to tell the complainant tenant that you need corroboration and that a by-law ticket or a police charge would be great corroboration. I would also inform the complaining tenant that as a result of the investigation that you learned that the complainant was verbally chastising the other tenants. Confirm that this may be harassment and that if you receive a corroborated complaint from the upstairs tenant that you will serve the complainant with a Notice of Termination.

      There is no simple way to solve interpersonal conflicts between tenants. My experience is that the only way to keep it under control is to have the complainant clearly document every complaint in writing and to inform the complainant that you need corroboration. This is a fair amount of work and usually limits the frivolous complaints.

      Good luck

      Michael K. E. Thiele

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    2. Hi Michael. Thank you for your quick response....

      Notwithstanding the proof requirement can the disturbances I described ( slamming cupboards, foot traffic..... between the hours of 11pm and 7am) even be construed as actionable noise complaints.

      If I read between the lines of your response, it would seem that only those actions that a by-law officer would issue a ticket to, would qualify. As such there is no obligation on the part of the upper apartment to be considerate of the people below them throughout the night.

      It would be help if the RTA addressed this issue specifically, because as I see it noise is noise especially throughout the night. Are there any guidelines on noise published by the RTA that I have not found yet?

      Thanks again and cheers, Greg.

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  43. Hi Michael. I am hoping that you have some suggestions to this. I live in an older home that has been converted into 3 apartments (basement, main floor, and upper floor). I live on the main floor. The floors are hardwood and all floors share the same heating ductwork.
    My neighbour downstairs has complained twice to the landlord that I am creating excessive noise. Now, I live alone, and do not walk about the house in high-heeled shoes or drag furniture nor play music loudly. I live a fairly quiet normal life. By the same token I can clearly hear my upper floor neighbour, but understand fully that the noise they are creating is normal for living is such close quarters.
    I am concerned that the basement tenant is being unreasonable and forcing the landlord to act.
    What are my options, I like living here and really do not like the idea of another tenant creating unnecessary problems.

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    1. Hi: Practically speaking, there isn't much that you can do to stop a tenant from complaining if they are the type that is intent on complaining. However, if they are reasonable people then perhaps approaching the tenants, trying to understand the complaint and the specific incident or what it is that you might be doing that is disturbing them could be worthwhile. If the thing that bugs them is something that you could easily change then it is likely worth being accommodating and changing your behavior for the benefit of good neighbourly relations. Don't let the complaints to the landlord put you off of building a respectful relationship with the downstairs tenant. Perhaps the downstairs tenants are too nervous or scared to approach you directly. Perhaps you take the bull by the horns and approach them.

      If the downstairs neighbours really are being nitpicky about nothing then that too is good to know. If you email the neighbours or write them a note (keep a copy) asking to meet with them to understand the complaint and to work something out you will be the bigger person for it. Being the bigger person will pay dividends even if you have to go to the Landlord and Tenant Board as it demonstrates that you are a reasonable person who isn't indifferent to one's neighbours (a good thing even if you are utterly indifferent!).

      If the neighbours rebuff you, or if you determine that what they are complaining about is something you can't change, or if they are complaining about common and normal living noises then this is good evidence to have for a hearing. Perhaps get your landlord involved in this process as well. If the landlord is siding with the downstairs neighbor (because they are complaining and making a nuisance of themselves) then try to disrupt the alliance by making the landlord do some actual work. Propose that the landlord come to the property, have your own friend there too, do some test walking on the floor etc., try to get replicate the sound that the downstairs neighbor is complaining about. Have your friend keep notes of the exercise. You can imagine how this might all turn out, the incredible amount of effort and time needed to do this and a possibly inconclusive outcome. It will likely be an inconclusive outcome if the downstairs neighbor is indeed complaining about normal living noises. The inconclusiveness of it all, your efforts to deal with this, all weigh in your favour should the landlord try to take action on the tenants' complaints.

      Remember, the ultimate test is whether your behavior is a "substantial interference". Normal walking, normal living noises are not going to result in an eviction. How you are perceived by the adjudicator hearing your case is something within your control based on how you respond to the landlord's advice to you that the neighbours have complained.

      Good luck

      Michael K. E. Thiele

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  44. Hi Michael.. I enjoyed reading all your comments and answers.

    Our problem is that back on September 1, 2015 two young guys moved next door to us (high rise apartment) and their balcony is right next to our bedroom window. Turns out they smoke something.. not marijuana but smells more like burning plastic/rubber so we're thinking meth.

    About a week ago, I'd had enough. The odour from whatever it is they smoke seeps into our apartment so I complained to our building manager. She asked me to put it in writing which I did. She also asked me to contact our superintendent the next time I smelt it. Well later that night, it was strong so we had the superintendent over and she confirmed it was, in fact, something illegal that they were smoking. She said she'd smelt it about a week ago and had given them a verbal warning at that time. When she was here, she called the police from our apartment on her cell phone. She left shortly after saying that the police were going to come but we didn't need to talk to them. She said if it happened again that night, to call her again and sure enough about 11:30 pm the same thing so she came over again. She was still waiting for the police who finally showed up at 2:30 a.m. Yes, I totally understand our crackhead neighbours are not a priority and the police DO have more important things to look after, but we appreciated them coming,

    She advised us a few days ago that they had been issued with an N5 form but we should continue to record the date and times they were smoking (on the balcony), and we have been doing this. From what I understand, they need to get another N5 before they can be evicted? Is that correct? Obviously the police warning and the N5 have done nothing because they continue to smoke whatever it is at least two or three times a day. I believe they issued the warning on Friday but they were back out smoking Friday night and Saturday, etc.

    We are supposed to give 60 days notice if we are going to move out but I am at the point where I'd be willing to fight this required notice.. nobody should have to live with that. Would I be within my rights to move without notice based on what's happening?

    These are considered "luxury" apartments and our rent has just gone up 2.2% which makes me even madder. They certainly are not providing what they should. What can we do in the meantime? Any help you can provide would be appreciated. Thanks so much

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    1. Hi: The Residential Tenancies Act requires 60 days notice of termination even in the circumstances that you are describing. For shorter notice, no notice, and a termination of the tenancy you would have to apply to the Landlord and Tenant Board for an order terminating the tenancy. The Board would decide whether you are justified in seeking termination with shorter notice than what is required under the RTA.

      "Luxury" status will have little influence on the Board. The key to whether you can terminate on short notice will largely be determined by the type of response that you had from the landlord once you reported the problem. A failure to respond to a serious complaint or a failure to deal with it promptly can be grounds for termination. Your description is of a landlord who is doing what they can, as quickly as they can. These facts would not normally be grounds to terminate early.

      Choosing to ask the Board's permission to terminate early is one way to go. However, the process of filing the application, waiting for the hearing, and then waiting for a decision, may bring you mighty close the 60 days to the end of term notice that you would have to provide in any event.

      An alternative to seeking permission from the Board is to seek agreement with the landlord. The landlord is able to consent to early termination. You use a Form N11 for this purpose. If the landlord refuses to accept an early notice of termination and you're adamant to leave forthwith you could always move out and let the chips fall where they may. Upon moving out you should provide the landlord with a Notice of Termination (Form N9) for the date that you have vacated even though the form will be technically void for not giving the full 60 days. Return the landlord to possession of the unit and advise the landlord to mitigate its losses by re-renting the rental unit. If you are on a month to month tenancy then 60 days to the end of term is your maximum rent arrears exposure. If the landlord re-rents quickly the amount of the claim against you is reduced. If the landlord does not re-rent then your invalid N9 that you gave at the time of moving out will be deemed effective on the first legal date that it could have been effective. The reason to give an immediate notice of termination is to trigger the mitigation duty on the part of the landlord.

      If the landlord chooses to sue you for rent arrears you may of course defend on the basis of not having quiet enjoyment and you may file your own claim against the landlord for those damages and for what you have had to put up with. Depending on how this has impacted you, you may of course allege that the landlord's response to your complaints was wholly inadequate and that they should have filed with the landlord and tenant board immediately and they should have offered to put you up in a proper hotel until the issue was resolved etc.. What you claim is really dependent on the circumstances---the circumstances will dictate what is reasonable. In the face of such a defence and counterclaim (defendants' claim), you might find that the landlord simply agrees to walk away or they will settle with you. You might consider suing for your moving costs and expenses on the basis that these expenses were only incurred because of the landlord's breach of covenant. Note that the breach of covenant is not dependent on negligence of the landlord.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. On the issue of N5's. It is complicated. Depending on the timing of events and whether certain behaviours stop---a single N5 can be grounds to apply for eviction or it may be voided by compliance and hence a second N5 within 6 months of the first N5 being issued may be required. To determine which is correct in your circumstances requires the specific details of what the offending tenants have done and the timing of all of those things.

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    3. Thank you so much, Michael! This information is very helpful. Yes, we probably should just give our 60 days notice and move out rather than risk being liable for the rent owed. I honestly hope the N5 is enough to stop their behaviour and let us get our life back. Thanks again for such a detailed, clearly worded explanation. It's appreciated.

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  45. Hi Michael, we own a duplex. We live in the top two floors, we have very quiet tenants on the main floor and in our basement suite the tenant there is operating a business in which he says he has to make calls to Europe in the middle of the night, or talk to friends on the west coast. Basically, his calls--which he says he is making in a normal tone of voice--are very disruptive to our main floor tenants who do not want to be awakened in the middle of the night. Their bedroom is right above his work station. It's an old house and not very good soundproofing between floors. When the basement tenant moved in he was a student, didn't have a TV and said that he lived very quietly. We explained that our house only worked if everyone respected the peace and privacy of every one else in the house. At the time, he said he totally agreed. Then, the basement tenant started a business with all this middle of the night calling to clients in Europs. He says that our first floor tenants are inhibiting his ability to live and work in his own home. He doesn't seem to appreciate that most businesses operate between 8 am and 6 pm. I have just become acquainted with the idea of "Right to Quiet Enjoyment" What can we do about this. I don't really want to have to go the legal route, but this is really driving us, landlords, crazy.

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    Replies
    1. Hi: I understand your hesitation to go the legal route but that is the road that I recommend. While proceeding legally, nothing stops you from mediating a deal or coming to an agreement that resolves the issue without a hearing. Such a resolution, however, is still a part of the legal route.

      The way to proceed is with a Notice of Termination of the Tenancy. Given your reluctance to go "legal" I'd recommend the N5 Form as this is a voidable Notice of Termination that allows the tenant an opportunity to rectify his behaviour and continue his tenancy. The possible alternative is the Form N7--which is based on the same grounds but is non-voidable because you live in the building and there are 3 or fewer units in the building. The Form N7 calls for the landlord in the small building to also have his reasonable enjoyment seriously interfered with. I'm not sure whether this describes you or not. It's best perhaps to proceed with the N5.

      If the tenant does not correct his behaviour then you can follow the process and either serve a second N5 if the first was voided or simply proceed to the Landlord and Tenant Board using a Form L2 if the first N5 was not voided by compliance. At the scheduled hearing there will be an opportunity to mediate and if that does not work the adjudicator will listen to the evidence of the basement tenant and the middle tenant and decide whether these facts require termination and eviction.

      It seems to me that you have little choice but to proceed legally. If you do nothing in relation to the basement tenant then it is likely that you're going to lose the middle tenant and the middle tenant may even take you to the landlord and tenant board seeking compensation. Taking the complaints seriously and addressing them as contemplated under the Residential Tenancies Act is the best way to protect yourself from legal proceedings by your tenants.

      Good luck

      Michael K. E. Thiele

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  46. Good Afternoon Michael,

    I've placed this message as a 2 parted - as I needed more room to describe what's going on...
    I'm writing you this message today because I feel like I've completed exhausted ALL my resources and hope you will be my saving life line. I've been renting from my current rental company for over 4 years now - my family and I (2 adults, 1 small child) have been living and dealing with noisy upstairs neighbours for over 3 years now. When I began the initial complaint process (back in April of 2012), I contacted my superintendent at the time, asking her to speak to the tenants upstairs. She proceeded to tell me that it would be better if I spoke with them first (I found this odd as I have a complaint - why am I rectifying it?). My fiancé and I decided to go upstairs and speak with the tenants. When we spoke with her (there are 2 tenants, middle aged, she doesn't work at all and he works seasonal construction), she flat out denied making noise and tried to blame the tenants above her (I don't see how noise could travel down 2 stories through concrete slabs?). We felt we got absolutely nowhere - so I wrote up a polite letter and left it in their mailbox. The noise continued for almost a year afterwards. My family and I finally had enough and decided to file formal complaints to the property manager the end of 2013 and into 2014. We sent in letters; detailing daily and nightly noise issues and what the noise sounded like, etc. We sent in numerous letters - and yet kept feeling like we were getting the run around. My fiance decided in January (2014) to contact the head office in Toronto and speak with their admin staff. When he informed the lady of the situation, she even asked why our property manager hadn't filed an N5 form. We contacted our local office and proceeded to ask why she hadn't either. During the whole procedure, we felt like she was siding with the noisy tenants and actually friends of theirs. She finally filed an N5 form - and the noise continued. We continued to send in more complaint letters and she filed another N5 form. Finally in June of 2014 we received notice of a tribunal hearing. My property manager decided to contact me through Facebook (social media) and informed me of the date of hearing - I feel that was very unprofessional. She knows my home address; she could have dropped off the letter in my mailbox or called me on the telephone. Her excuse was she didn't have a up-to-date number. All my details (which haven't changed) are in my file in the office. When I read the notice, I unfortunately wouldn't be able to attend. I had work obligations - as such did my fiancé - and we felt with the amount of loss of sleep, time off of work to deal with this problem, etc; we shouldn't have to do more. I informed the property manager of this and she said that was fine. On a side note: I've spoken with several landlords/rental property owners and they've informed me that I could show up as a witness to the hearing but essentially the company should be representing me and my family's best interest. That I didn't necessarily need to be present - as it’s a conflict of interest.

    ReplyDelete
  47. Second part:
    After the hearing - we contacted our property manager, only to be rudely spoken to, and was told she couldn't tell us any information. The only thing she told us on the telephone was, she didn't care of the outcome; as we're both paying tenants. Time lapse and the noisy upstairs tenants remained stationed. More things occurred throughout this time period. My fiancé and I have received a screw in our tire last year, at the time we started filing our formal complaints. We had a door ornament stolen off while we were home. Our building is a secured complex - so only someone with access could have done that. This past Spring (2015) the property manager left the company and another woman filed the position. Again, she left and finally we have our current property manager. I've spoken with her directly regarding ALL the issues we've dealt with. I've been sending into the office, fully detailed letters of noise complaints. The noise is unbearable - occurring mostly in the wee hours of the morning (such as 4am or 5am), we know the tenants are intentionally creating the noise - as they feel their untouchable - and can do as they please. Their adjacent neighbour (next door) has filed a formal complaint against them as well - for harassment. When I spoke with my property manager yesterday (Nov.25, 2015) - I felt like I was once again getting the brush off, as I had in the past with the previous manager. She further explained to me, that she was unable to find any past complaints or even a tribunal hearing paper (this office also works with electronic data - and there was NO record of the hearing on the computer) but I stayed and informed her there was. She decided to hunt further into her filing cabinet, to find a file with ONLY the tribunal court hearing paper. Where did ALL my complaints go? I told her flat out I felt like the last manager either destroyed the documents or just threw them out. I have proof of ALL the paperwork, letters, complaints, fax transmissions, email correspondence, etc; regarding this issue. Should I fax ALL of the paperwork to the office again to place in my file? My family and I are at our wits end. This company has months of complaints, now a harassment complaint for another tenant regarding the same people, and yet we still have to pay our rent on time and deal with the disturbances? The anxiety, stress and exhaustion have fully taken over. We have no peace and quiet in our home environment. I've been very adamant to this lady that I want things to move faster to get another tribunal hearing date. She remarks make me feel like she isn't moving this issue along in a timely manner and even questioned me if I thought the noise was from them? What is wrong with people - why are they NOT taking our complaints seriously!?! So I'm asking you today for your help and support. Please point me in the right direction - so my family and I can finally have some peace. I've looked into the T2 form to file against the company and I feel that may be my final option. After all this I feel like, if the company wants to keep noisy, disrespectful, inconsiderate tenants - that they can at least reimburse me my last months rent and pay for moving costs for all the upset and grief we've had to deal with. None of the staff members; such as, landlords, superintendents, office staff, managers, really care about our problem. They just don't want to deal with it at hand. Please Michael, give me some advice of what to do?

    Many thanks in advance for your help and guidance,
    Cris.

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    Replies
    1. Hi Cris:

      As I think you already know, a landlord is required to take complaints respecting noise seriously. A landlord is supposed to investigate complaints and if found to be justified the landlord should serve the requisite notice of termination. You have identified correctly that the usual form for noise is the form N5. The N5 is voidable if the tenant corrects the problem. Failing correction the landlord may proceed on the first N5 or if necessary, serve a second N5 and proceed with a form L2. The L2 application, once filed leads to a hearing date.

      You are incorrect about your position in relation to the hearing date. Your participation in the hearing is an absolutely necessary. Without your involvement it is very likely that the application would be dismissed out of hand. The allegations in the N5 are only allegations. They need to be proven at the hearing. As the witnesses to the noise and victims of it, your evidence is imperative to have for the hearing. Without it, the tenants could simply say that they don't make noise and that would result in a dismissal of the application.

      Your landlord should be using a paralegal or lawyer to present the case at the Landlord and Tenant Board. Any experienced representative is going to require your attendance for the hearing or adjourn the hearing to another date when you are available.

      When a landlord does not do their job a tenant may indeed file a T2 application to the LTB seeking a remedy against the landlord. You proceed against the landlord because you have no direct right of action against the tenant at the Landlord and Tenant Board. You have a right to quiet enjoyment of your rental unit and the landlord's failure to investigate and properly prosecute the tenants above you has deprived you of your quiet enjoyment of the premises. You will, in the course of the T2 application, fin d that you will need to prove the nature of the noise coming from the tenants above you and the Landlord and Tenant Board will assess whether the noise amounts to a substantial interference with reasonable enjoyment of the premises. If you can't prove that the noise is a substantial interference with your reasonable enjoyment of the premises you are unlikely to win the case against your landlord.

      Good luck
      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Michael - thank you, thank you, thank you! I appreciate your quick response on this matter and the information you've provided me. I have contacted head office and resent all my complaint letters - and resubmitted them all to my local office. I want to proceed forward to have a new hearing date. I should have known when I spoke to the previous property manager - that I shouldn't have taken her word for it and had shown up. I will not make that mistake the second time around. I am almost 100% sure it got dismissed. If I find the company isn't taking my complaints seriously and issuing the correct forms - then I will proceed with the T2 form in the new year. I feel my family and I have dealt with enough. I feel like I'm doing their work for them.
      Again, your response is much appreciated! Wishing you all the best and a very Happy Holiday!

      Regards,
      Cris.

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    3. Hi Michael,

      I finally heard from my office (and apparently head office has been in touch with the local office now) regarding the noise issue we've been experiencing. My rental office informed me the company is willing to let us relocate into a different unit within our current complex. I know this resolution would resolve the noise we're experiencing - my only concern is - we'd still be living in close proximity to these individuals. As mentioned previous we've had our property (vehicle) damaged in the past. If we stay - I just don't want myself and my family to endure further damages/issues. Would it be in our best interest to view the unit and potentially move units OR is in our best interest to proceed with the N5 form (which my property manager said today she'd issue) and hopefully bring the issue into Tribunal again. My property manager keeps saying to me (in person and on the telephone) that she's worried the outcome may not be what we want (ie: the upstairs tenants not being asked to vacate). Is this correct - I feel like they just don't want to deal with the hassle? With proper documentation, witness(es), police reports (if needed), etc - should my family and I just proceed with the hearing? I don't see why we should have to move units when we're not the ones causing grief. Why hasn't the company offered the option to the noisy tenants upstairs?
      Any and all information you can provide or advice you can give would be greatly appreciated. Happy we're finally getting somewhere but feel like its not the best resolution - why should people who are in the wrong and have been doing wrong be given a free pass!?

      Regards,
      Cris.

      Delete
  48. H, my boyfriend and I have recieved 2 noise complaints and i was wondering if they are valid? First of all, they are NOT on an N5 form or anything like that and they also do NOT say what I am being accused of or any details...they weren't even hand delivered. My landlord has NOT hand-given me or my boyfriend an eviction notice, but are saying we have to vacate by the 1st. Can i fight this?

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  49. Hello Michael, other than recording all dates/times of loud music coming from upstairs into my basement apartment and politely asking several times to turn it down - what options do I have if the person making such disruptive noise morning and night is my landlord?

    ReplyDelete
    Replies
    1. Hi Mary:

      The legal answer to your problem is that you should continue to keep track of the dates and times of the noise problems. Further, you should try to record the noise and get independent evidence of the noise problem. Depending on where you live you might also call by-law services and make a noise complaint against your landlord. While the by-law services might not succeed in giving a ticket, the appearance of by-law on the doorstep might make the landlord alive to the seriousness of your complaints. Once you have evidence and can establish that you have complained to the landlord about the noise he/they are making, you may file an application to the Landlord and Tenant Board in Form T2 asserting that the landlord has interfered with your quiet enjoyment of the property. There are various remedies that you can ask for including a rent abatement and an order requiring the landlord to quiet down.

      While the foregoing is certainly a legal route that you can take there is of course a bigger problem with "reality". The fact is that your landlord lives above you and your landlord will never be evicted from his home. While it is possible that the landlord may respond reasonably to your by-law calls and application to the landlord and tenant board it is perhaps more likely that the landlord will interpret your complaints as a declaration of war (not literally of course). Your landlord may start to take issue with you, serve notices of termination, and just generally make your tenancy even less comfortable than it is now. Of course the law does purport to give you protection against such tactics and the RTA even spells out explicit protections in section 83. That being said, the fight that could come with such a conflict likely isn't worth it. Your best bet, if the landlord will not respond favourably to your complaints etc., may be to look for a new place and then approach the landlord to terminate the tenancy by agreement. Yes, this may feel like defeat that shouldn't be but proceeding this way just might get you into a new apartment that you are happy in.


      Good luck
      Michael K.E. Thiele

      Delete
  50. I moved into a 2 bedroom with my 4 year old grandson. we were not in the unit more than 12 hours when the guy from the apartment under me came storming mad up to my door and told me to "control my kid"....i had said to him that my grandson is sitting on the living room floor with a small plastic train and was doing nothing wrong. told him that he is 4 years old and children "play".
    Since then we have had nothing but problems with the man downstairs. he plays his music so loud that we cant hear the tv and have to turn it up, which in turn probably bothers the people above me. this man has woken my grandson on a number of nights with the loud music...the man downstairs slams his door, bangs on his ceiling and scares my grandson when he does this.
    my grandson is four, he plays. He does not scream his face off nor does he stomp across the floor. He is a little clumsy and sometimes falls or drops something.
    i have mentioned all of this to my landlord and he has said " you live in an apartment building, there is going to be some noise", and has told me to go talk to this man under me. I don't feel it is my job to talk to this man as i feel it wont do any good.
    I have also asked the landlord to install carpet and he said no, that he had just installed the tile floors
    WHAT CAN I DO!!

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    Replies
    1. Hi: The downstairs tenant's behavior is unacceptable. You should document the behavior and provide it to the landlord in writing. Further advise the landlord that if he does nothing to stop this behavior that you will file an application to the Landlord and Tenant Board (Form T2) against the landlord seeking a rent abatement and an order requiring the landlord to take action. Collecting proof of the extent and severity of the noise and behavior of the downstairs tenant is also important as you will have to prove that the downstairs tenant is doing the things that you are complaining of and that these things are far in excess of "normal" apartment noises.

      Your landlord's suggestion that you speak with the downstairs tenant is not acceptable given his aggressive behavior (which I infer from your "storming" comment. You should write to your landlord advising that confronting the downstairs neighbor is only to invite anger and rage hence you can't do it. Keep copies of all of your correspondence to the landlord--by email is fantastic, fax is good as well---the point is keeping proof of your delivery of your complaints to the landlord.

      It is best if you can be represented in this process. If money is in issue, check to see if a local community legal clinic will take you through the process. It should be free.

      Good luck

      Michael K. E. Thiele

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  51. Hi There, I am a tenant that is having serious noise issues but I really don't think it's the other tenants fault. They are really just doing normal things but we can hear every single thing they are doing when they are home. We realized about a month after we moved in that there is only two pieces of drywall between our units. This condo building has absolutely no sound proofing or fire proofing between the units. It is like we are sharing the same unit with our neighbours. The rent is very high and on first sight look very nice. Everything seems brand new, stainless steel appliances and new fixtures so we never thought that there would be no sound proofing. At this point we are the ones that are going to have to move because I can't blame the neighbours and the landlord has become hostile towards me for having any normal tenant concerns. I am just not used to adults treating me so poorly as this landlord is now. I am just wondering what can be done because he shouldn't be allowed to carry out business like this. Are there not building codes for fire and sound proofing?

    ReplyDelete
  52. Hi Micheal
    I rent the top half of a very large house. I have 3 children ages, 9, 10 & 17. My house is attached to my landlords and I was wondering if you could help. There are a few issues so I will go thru them one by one.
    When I moved in here in September I was told that the people in the basement would pay 1 third of the utilities and I would pay the rest. I was told the utilities had to be put in my name and when I paid the bills to bring the bill over to show them and they would give me my 3rd. Ive paid the bills in full but one of the bills was paid late and my landlord told me if my utilities were not paid on time that I would be evicted. Is this correct? Can I be evicted for my own utilities?
    2nd: there are new tenants in the basement that moved in last weekend. The house is very old and not sound proof. There are no carpets and both I amd those downstairs can hear everything. Whether it is talking or cooking or cleaning we all hear eachother. The other night I went downstairs to turn off the lights and get a glass of milk and my 10yr old daughter came to meet me on the stairs. She handed me her cell phone and said my landlord had just texted her asking who was running around and banging? It was 1011pm my 2 youngest had been upstairs sleeping since 830pm and my eldest was at work. I start work at 5am every morning so I am usually in bed at 9pm but this particular night i was thirsty. I explained to my landlord noone was awake and she said it was weird because the noises had stopped. She claims she was in her home next door when she heard these noises. Yesterday she told me that the tenants who just moved in were moving out because there was no privacy or insulation. They asked me to move my livingroom to the opposite side of the house because the tenants downstairs put their bedroom under our livingroom. I refused. They threatened an N5 which I told them to go ahead with. We are actuallt very quiet but we do talk to one another and do have to walk in order to get around. Do I have anything to worry about or is there anything i can do to protect myself?

    ReplyDelete
  53. Hi Michael,

    What if the landlord never issues the first N5 form only the second one, or what if the tenant says she was never served with a N5 notice and just saw the date for the hearing by mail?

    Thank you!

    ReplyDelete
    Replies
    1. Hi:

      The N5 termination process is highly technical. If there was no first N5 then it is quite possible that the second N5 is void. The number of days notice in the 2nd N5 will be insufficient to constitute a valid first N5.

      If the issue is a denial of service of the first N5 the tenant will, in my experience, have a tough up hill battle convincing the adjudicator that they were not served. If the Landlord has a Certificate of Service and there is no logical reason to explain why the landlord would not serve the Notice the Landlord and Tenant Board tends to accept that the N5 was indeed served. Of course, there are many exceptions and the Board has accepted tenant's evidence of never having been served. When that happens the application typically gets dismissed.

      If the service of the first N5 is going to be challenged it is worthwhile to go to the Board in advance and look at the Certificate of Service that must be on file. It will say how the N5 was served and when it was served. The challenge to service is more affective if it can address why the stated method of service did not happen.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  54. Hi Michael,

    I recently received a letter from my property manager who stated that they received complaints regarding loud hammering on the walls and floors of my unit. They said that this has been an ongoing issue for a few weeks now and on Jan. 1 around 3pm there was loud hammering/banging coming from my unit that lasted serveral hours as well as again, the next day at 12 am. They said it sounded like a sander or drill. They then said they would sent me a N5 form and to govern myself accordingly.

    I was wondering what I can do about this because I will admit that there was some hammering at 3 pm because I nailed my wall mirror to the wall that last less than 30 mins. All other allegations are untrue and I do not feel comfortable to be blamed about this. The incident they allegedly claim that I made the following day, came from residents below me and now I am being blamed for. I feel like I am being cornered and all noise coming from my floor, I am being blamed for.

    I was also wondering why if these were concerns of several weeks why no manager has come to my door and verbally talked to me about this when they are being complained about and instead I am receiving a letter several weeks/days after these allegations. I didn't know that I was not allowed to put on a wall mirror during the day because of noise disturbance? Several months ago, I had even asked one of the building manager to help me install a wall shelf in my apartment, where he went forward and used a hammer drill into the wall to do so. I was concerned about the noise and made a comment and he said there's no problem because it was during the day.

    I was wondering what I can do about this and how about to handle this. I have made my own complain about my resident smelling like cigarettes and marijuana before and what I could do and they told me to deal with it. I have been a very respectful tenant never slamming any doors and keep sounds down to a minimal and dealing with everyone's loud banging and cooperating but now I feel like I am being bullied. Please advise me. Thanks.

    Lola

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    Replies
    1. Hi Lola: You sound like an ideal tenant to me. You may want to write to the landlord and advise that you have not made the noises complained of and that they should better investigate the situation if other tenants are hearing noise because the noise is not coming from your unit. Keep a copy of your letter to the landlord.

      The situation of hanging a mirror and having a building a manager help you hang shelves is not a legitimate basis to complain. You certainly may do these things and how you did them is reasonable. You are entitled to live reasonably and make noise for these kinds of things. The rule is not that you can't make any noise at all. To evict someone for noise the noise must be a "substantial interference" with reasonable enjoyment. What you describe does not amount to being "substantial".

      If your landlord decides to proceed against you the landlord will have to prove the allegations. Any evidence you can collect to refute the allegations is helpful---for instance, if you are able to prove that you weren't home when it is alleged you made noise by showing a receipt or something like that. If you are on friendly terms with your neighbours see if they will write to your landlord supporting you (and keep a copy of the letter).

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  55. Hi Michael,
    I currently rent a house with my mother and sister. We rent the main floor as well as the upstairs. There is a basement apartment that is rented by another person. The person that rents the basement apartment is an alcoholic and everytime he drinks he pounds on the ceiling (our floors) off and on for hours, sometimes well into the middle of the night. It has become so that we are afraid to move in our own apartment because anything can set him off. He screams and yells and bangs all the time. We have talked to our Landlord about this issue and our landlord has awknowledged that this tenant has been a problem for years and has forced other tenants out but that there is nothing he can do. The tenants harrasment has kept us from sleeping,using the shared laundry (we go to laundrymats now because the washer and dryer are just outside of his door and he has shut the dryers off on numerous occasions and we dont know what else he would do to our clothes), we are afraid to move. I was just wondering if you could give me any advice for something that i could do or some info to pass on to my landlord.
    Thanks alot,

    Matt

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    Replies
    1. Hi Matt: What you are putting up with is entirely unacceptable. Your landlord has many options and can seek to evict the downstairs tenant based on your complaints. His statement that there is nothing he can do is simply wrong. While you can't take direct action against the tenant through the Landlord and Tenant Board you can take action against your landlord. An implied term of your lease is that you will have quiet enjoyment of your premises. Clearly you do not have that. Accordingly, you can take him to the LTB and ask for various remedies including a rent abatement and an order requiring him to take action respecting this matter. Your landlord has obligations under the RTA and simply sticking his head in the sand is going to get him in trouble!

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  56. Hi Michael,

    This article was recommended to me. Like others, I have been plagued by noise pollution in my condo. I have repeatedly filed complaints with the property manager and feel that they are not taking action; in other words, I've been given the run around. Even if he *did* want to help my family, I don't think he could serve an N5 to the neighboring tenants as they are home owners and not renters. This gives me no real choice but to break the lease and leave, however, I'm concerned about the possible repercussions. Can I be penalized if I terminate earlier than 60 days? Or am I well within my rights? Should I ask to terminate my tenancy first, or file with the LTB instead? And will that cost me money to do so?

    Any advice would be greatly appreciated, as I haven't found much that specifically relates to tenants versus condo owners.

    Thanks!
    -Chrissy

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    Replies
    1. HI Chrissy: Your lease obligation is governed by the Residential Tenancies Act (RTA). In order to terminate your lease you must comply with the provisions of the RTA. This means finding a legal basis in the RTA to terminate. The situation you are describing does not automatically give you the right to terminate your lease. You do indeed have continuing obligations to your landlord and simply moving out will potentially result in orders against you for ongoing rent.

      You should speak with your landlord and see if the landlord will agree to terminate your lease early. Explain the situation. If there is agreement use the Form N11 (Agreement to Terminate). This will end your lease and your rent obligations. If the landlord does not agree to terminate then you have an option to proceed to the LTB on a T2 application. You can seek a termination of your tenancy, a rent abatement, and a permanent rent abatement if the tenancy is not terminated. The success of that application will depend on your ability to prove the nature of the problem. Another option, the one that the Board would recommend to you, is that you try to assign the lease to someone else. The process is complicated and there may be some termination avenues through the process. However, if you successfully assign your lease your obligations will end. The last choice is to simply abandon the premises and return possession to the landlord and advise the landlord that if he sues you that you will countersue him for all that you have gone through. The landlord will have a duty to try to re-rent your place. If he re-rents quickly then the amount he can claim from you for rent is capped. If it takes forever to rent then your liability may continue. Of course the landlord will not be oblivious as to why you've vacated and this may factor into whether he will chase you or not.

      There are lots of choices in how to proceed. Each choice comes with a certain cost or potential cost. You may choose to be represented and in that you would have legal fees which may total a few thousand--but hopefully you get advice that shuts down the matter quickly. Alternatively, you can save the legal fees and represent yourself and maybe get out of it unscathed or perhaps you get stuck paying an Order for breaching the lease. There are too many variables to be able to predict exactly how this will go and that is focusing only on the Residential Tenancies Act angle. There are proceedings under the Condominium Act that could complicate matters further on the issues that you raise.

      Hope that helps somewhat. Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  57. Part 1 of 2:

    Hi there,

    I live in an old Victorian building and the girl beside me complains about everything. I got a letter about talking on the phone for instance. I can hear the people above me - they watch tv loudly until about 1:30am in the morning every night, but I don't complain because I think its childish, and we live downtown, next to a subway- noise is inevitable.

    I was out of town most of the holidays, but on 2 occasions (one being New Years Eve) I was listening to music (New Years = 1:30AM, a Saturday night til 12:00AM)., for the first time since I moved in in Sept. On New Years I was loud- 100%. The other night I was listening to music on my computer and talking to my friend- it was hardly excessive. I was out of town on business this week and came home to a noise complaint citing "several complaints, about excessive noise, music and talking" and that if it continued they'd proceed legally.

    There’s really no details so I’m not really sure if it was just these two instances, or if the person beside me has been making a steady case about me for awhile…. She complained at 10:15pm on the day I moved in while I was unpacking – keep in mind there was no music or anything on I was just talking to my friend who was helping me. It seems I’ve been behind the 8 ball with her since day one.

    My question is – despite me being loud on New Years Eve/ 1 other time – is this person allowed to legitimately complain about me talking on the phone? Now that the one letter has been issued I’m worried that she’ll be able to complain every time she hears a peep out of me . What are my rights to dispute?

    I don't complain about others because I think its childish and now I'm the one getting targeted….

    I’m attaching my letter to my landlord below. Is it okay?

    Thanks in advance for your help!

    ReplyDelete
  58. Part 2 of 2:


    I responded to my landlord with this:

    I hope you had lovely holidays and a happy new year!

    I received the noise complaint and I have a couple of questions about it for you.

    I haven't even been in town- I was gone the last 8 days for work (which is why I just received this today) and I was gone throughout Christmas Break (December 22- 29). I came back for New Years and I was definitely loud past 11:00PM on that night, but to be honest I didn't think that would be an issue? I mean it was New Years Eve and I was in bed by 1:30am. I'm sorry about that. I have a Mac laptop that I use for music, or my phone- I don't even own speakers or a stereo. I think excessive noise is a bit of a stretch.

    The people who live above me play music/ listen to the TV loudly up until 1:00AM on week nights. I haven't really been here recently so that's dating back a few weeks but it was pretty consistent (to be honest I don't think it was music I think they just watching tv late at night) . I haven't complained because I get that its part of the territory with sharing space in a building and when it bothers me I just put in ear plugs. However I am wondering if the person beside me has mistaken that for me?

    She sent me a letter (which I have) complaining that I was talking on the phone? I'm sorry, but we have got to be reasonable I'm paying $1450 a month I should be allowed to have a telephone conversation without being badgered. Her letter even indicated that there was no loud music or tv that it was simply me having a conversation. I responded apologizing that it bothered her but that it was a bit of an absurd complaint- I guess that came across a bit snarky. I think that might have started the ball rolling on these "several complaints".

    Not to mention she sent it on Tuesday Nov 17 (I made note of this on her letter)- I was at my grandparents the weekend prior (with train tickets to prove it), and the last call I had on the Monday ended at 7:34PM. I honestly don't understand why she'd write a letter to me about being awake the last couple of nights when I a) wasn't home b) ended a call at 7:34PM and went to bed (I was recovering from foot surgery so I was sleeping a lot more then usual), unless she was mistaking the noise for another unit.

    I'm sorry that you're having to deal with this, I know it's inconvenient, and I can assure you that there will be no "loud" music coming from my unit after 11pm. If there is another complaint could you let me know the time/date right away so I can pinpoint what the issue is (it could very well be that its from upstairs, etc.). My work schedule for the next few months involves me splitting time between here, Montreal,(I'm training people) so I'd be interested to know if these complaints are occurring when I'm even in town?

    As well if I'm going to be receiving formal complaints I'd like it to be noted that this person complains- not about excessive noise or music- but about regular talking on the phone. It's unfair to compare excessive noise (like New Years) to talking to my friend on the phone.

    If you have any questions, or need anything else on my end, please don't hesitate to connect with me .

    Cheers,

    Candace

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    1. HI Candace: The letter is fine and a very reasonable approach. That being said I would remove any parts admitting to being very loud. Don't make an admission like that. Your view at the time was that the sound from your unit would not be an issue and I have to presume it was reasonable. You do not sound like the kind of person who would substantially interfere with the reasonable enjoyment of anyone's unit and as such I would not admit such a thing because you can not know that it is true.

      Otherwise it seems fine. You may wish to ask the landlord to copy notices to you via email as you travel frequently and may not get notices.

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Thanks for your help! She hasn't responded yet but I'm going to follow up and ask her to email me notices as well.

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  59. Hi Michael,

    I've contacted you back in December - regarding the Rental Company I rent from and their lack of concern for the noise issue, my family and I have
    been experiencing over the duration of living on the premises (over 3 years now). When we last spoke, you mentioned the N5 forms and possibly going the route of filing a L2 form against the company. I faxed all complaints letters I had on file (from years previous and most current ones to head office) - head office returned my email and offered my family and I another unit in our current complex. The unit is substantially smaller in square footage and is on the top floor (which is very hot/humid during the summer months).
    They also offered us additional (2) units in another part of town where we reside. I sat down and thought about all this - and I've asked the company the same question. Why are we the ones that need to uproot our lives (we have a young child, who attends school 5 mins down the road - and our apartment is in the proximity of our places of employment). In response, the company keeps stating they are working along side both parties. I told them I felt they weren't working with us at all! We have the issue with the above tenants - yet the company doesn't want to rock the boat. Why are they working with both sides? Shouldn't they have been working with us from day 1? I gave them over 2 months of solid daily complaints (along with the other months of complaints that are filed), outlining when the noise was occurring, where it was heard, what sound it was, etc. They should have issued an N5 form already - which I don't think they have. I told the Property Manager (last month) that the noise is still continuing and if they have submitted an N5 form, they need to submit another on; as the problem still happening.
    They keep giving me the run around - for some reason don't want to follow protocol and issue the necessary documentation. I know for a fact that all
    they need to do is bring up the document, fill it out, and drop it off in their mailbox. Its been almost a month without any response regarding the problem. They just keep wanting to push a relocation - thinking that will solve all problems. I told them we'd still live in close proximity to these individuals, and we shouldn't have to be the ones to make change, when we have no issues at all (with any other neighbours, tenants, employees, etc).
    The same individuals have had a harassment complaint placed against them - this incident also affected us and our right to enjoyable living environment.
    Is it against company protocol to withhold issuing a N5 form if they've received substantial amount of complaints (regarding the same issue / tenants)? And would it be in my family and I's best interest to file a L2 form? I have a family friend who's husband works with the Landlord and Tenant Act - they've both informed me that my Rental Company isn't following proper
    procedures (essentially I can't even call my Landlord and ask him to come over and witness the noise - let alone talk to the tenants above about their noise), I've been told flat out by my landlord that he won't help me with this issue and that I need to address it myself (essentially contacting the police). I thought landlords/superintendents had to deal with these problems and try to resolve them promptly. Apparently not!

    Michael, I'd appreciate all your assistance and guidance on this matter. Please let me know what you think would be the best solution - so I can proceed forward.


    Kind regards,
    Cris.

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    1. Hi Cris:

      A landlord is required to deal with noise complaints and other complaints from tenants where the basis of the complaint is that the tenant is being denied their quiet enjoyment of their rental unit. Whether express or implied, quiet enjoyment is a right that every tenant has in their tenancy agreement with their landlord.

      While a landlord has a duty to investigate complaints the landlord is not required to proceed in the way that the complainant would desire. Just because you have been complaining does not mean that the landlord must serve an N5. A landlord's obligation is to investigate a complaint and if the circumstances require it the landlord must proceed in a way that restores the complainant's quiet enjoyment of the rental unit. There is a lot of leeway in how to accomplish this.

      Your landlord's reluctance to serve an N5 may arise from many different legitimate reasons. It might be that the investigation of the complaints is 1) inconclusive, 2) the noise derives from normal living and does not amount to a substantial interference with reasonable enjoyment, 3) the noise may be amplified but the construction of the building and is not attributable to bad behaviour by the tenants, 4) the noise is considered to be normal living noises, 5) there are no noises and the problems you are identifying do not exist, 6) there are noises, they are substantial, and the landlord doesn't care, 7) the landlord is incompetent and is unaware of his obligations under the Residential Tenancies Act and simply isn't doing anything correctly.

      The landlord is choosing to try to move you to solve a problem. It is unclear from what you say and it is unclear from what the landlord is communicating to you, what problem the landlord is trying to solve. Presuming a competent landlord the failure to deliver N5's suggests that the landlord does not perceive the other tenants as the problem.

      If the landlord has it all wrong your option is to use a T2 application (Tenant's Rights) to the Landlord and Tenant Board to raise these issues. Filing the application may allow or force the landlord to disclose more information to you. Some of that information may be covered by privacy laws that the landlord feels prohibit disclosure without legal proceedings.

      At this stage you have collected evidence, have documented your complaints, and you have requested help from the landlord without anything useful happening other than the offer of a move. The move is worth considering as it takes you away from the overhead noise. Perhaps the landlord could be persuaded to assist in the costs of moving? Working with the landlord to find a solution is likely better than an application to the Board. While the move is an inconvenience, it may be the only real solution. It is entirely possible that in an application to the Board that the landlord testifies that your complaints are unfounded, not substantial, etc. (as per the list above). The Board may very well hold that the landlord has investigated properly and that the Board accepts the landlord's conclusions. The result may be that your application is dismissed and there is no remedy for you. On the other hand, if what you are complaining about it so obviously outrageous and you have unequivocal evidence then a hearing is more likely to go in your favour.

      The foregoing I think is the best I can do for you. I think you would be best served by sitting down with a lawyer or paralegal and laying everything out and showing all of the evidence that you have. Your situation requires an objective review from someone who can look at everything and someone (like a lawyer) who could call the landlord or superintendent or the landlord's lawyer and have a chat about what is going on. Getting a lawyer involved on your behalf, one who can reach out to the landlord after assessing everything on your side is probably the best advice that I can give you.

      Goodluck

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Thanks again Michael - for all your advice and help with this matter. Best wishes for a happy and prosperous year!

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  60. Hi Michael,

    I'm hoping you can offer some insight.

    My daughter bought a house last year and has been renting her shared home with three students for the past 18 months. Recently one of the students was smoking pot and making loud noises while having a friend overnight.
    Both are a violation of the lease agreement (smoking in the house and loud noises) the lease will terminate on April 30 2016.
    Need advice as how to proceed? I suggest that she talk to her today and gave her a letter in writing noting the disturbance and the violation of smoking in the house.
    And let her know that if this happens again that she will call the cops. Should she mention that she will also call the parents?
    What options does she have? Should she be filling out the form N5

    Thanks Tony

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  61. Hi, Michael,

    I rented a two bedroom in an apartment building. my super lives on the same floor as me. now I do have a 12 year old daughter. Now i got a letter of eviction because of the noise they heard on sat from my daughter and her friends. Now my daughter was playing music through her phone in the washroom at 11:00 am, which is by the front door and my super walked by and called me telling me she was being to loud. Now what is a reasonable living. I feel like Im walking on egg shells in my place.

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    1. Hi Samantha:
      The question you have to ask yourself is whether the music being played by your daughter caused a substantial interference with the reasonable enjoyment of the premises by other tenants or the landlord. Being able to hear a tenant, the tenant's music, television, in the hallway of an apartment building is quite common. Is what was coming from your unit in anyway out of the norm for your building?

      It is also important to look at what your daughter was doing. A 12 year old girl playing music while in the bathroom is the epitome of "normal" behaviour for a 12 year old. In my view you, all tenants have the right to pursue normal behaviour in their apartment and to live doing normal things. If there are sounds or noises that escape the apartment because of the "normal" activities then in my view these noises become part of the normal sounds of this building and these sounds must be accepted by other residents as the natural function of apartment living.

      That being said, consideration for one's neighbours factors in as well and there is an element of courtesy and reasonableness that also applies. By living in an apartment building one of the things that you also have to accept is that your freedom to make noise incidental to normal activities will be a little more constrained than if you lived in a single family dwelling etc..

      So the question is, was your daughter's behaviour reasonable in the context discussed. The super is not entitled to absolute quiet and being able to hear the music in the hallway doesn't mean anything by itself. Was anyone actually "substantially interfered" with. These are the questions that an adjudicator at the Landlord and Tenant Board will ask. If you can answer that the noise level was reasonable, no reasonable person was bothered, then nothing will come of it--other than the hassle of having to deal with the superintendent and the hearing at the Board.

      Good luck to you. If you are able to get representation to deal with the Super that might put a stop to any unreasonable demands. A letter from your representative to the landlord may indeed be helpful.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  62. Hi Michael,

    I truly appreciate you taking the time to offer guidance to those of us who are going through a rental struggle. Mine is very recent-new tenants moved in Feb 1st and I've been woken up by them 5 times in less than 3 weeks. I finally knocked on their door at 2am after being awoken for the third night (each time I'm awoken I have to work the following morning-something that I'm not sure they do), and only received ignorance and immaturity from them. I called the police who came and intervened effectively-just for that night though. I notified my landlord when this occurred, as I feel that enough is enough. He said he would speak to them, however again last night I was woken up at 12:30 (and kept awake til 1:45) by people shouting over each other and laughing quite loudly. Any warning knocks on the wall are just answered by knocks back from them-they very much seem to get enjoyment from disturbing me. I notified my landlord and I asked him to please provide confirmation that he has spoken to the noisy tenants about the recent disturbance so that I can document accordingly. Still haven't heard back from him as of yet. My question is-what is a reasonable time for him to get back to me? All communication was via text message so he clearly saw my messages and is choosing to ignore them. When can I escalate this matter? I have printed and filled out a T2 and update it as events occur. He stated that he spoke to them at my first complaint, but they're still being loud so can I ask for proof that he indeed communicated to them that they received a complaint? We're going into the weekend now and I can guarantee that I will be woken up at least one of those nights-this has got to stop.

    I have another question regarding the T2-since I can't ask the Board to evict my noisy neighbours (which I REALLY wish I could), what should I communicate on the form to get my message across? I see that in some instances you suggest a rent abatement but I don't even know where to start in regard to choosing a number (plus I do not want a cheaper rent I want peace and quiet) How can I best depict this on my T2?
    Thanks in advance :)
    -Kelly

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  63. Hi I am a tenant in a C.M.H.A unit and am having troubles with noise disturbance with the tenants next door to me. They have a 3 year old child and 2 dogs, The dogs bark loudly when they are not home or when someone knocks or makes noise in the hall. The child is constantly running heavily through the day and night. Also they drag their furniture around scrapping along the floor which sounds like finger nails on chalk board. I have a 2 year old service dog and these sounds more so the furniture dragging makes my dog run and hide. These noises go on all hours intermittently. I have asked housing to intervene and they said they can't. I have asked the super but all she does is talk to them nothing changes, this has been happening nearly a year.I have recordings of the noises, I have asked the neighbors to stop, I have suggested carpet, throw rugs, area rugs, felt tips for furniture to them and they have refused. I have witnesses to the noises and how my dog runs and hides. The people next door are aware of how this is disrupting my life and scaring my dog. I have also called the City and at the moment I am in the process of keeping records as to the time, date, disturbance and length of time to take to the city. I don't know what else to do. My dog is now going to need extra training so he can get over the noises of my neighbors

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    1. Hi Donna: I wonder if you have been to a community legal clinic to see if they can help you? So far you have done what you are supposed to do and complaints to the landlord are entirely appropriate. Your landlord's answer is not appropriate. At this stage I think you would be best served in getting a lawyer from a community legal clinic to help you. If you can't get service from a clinic (and assuming you can't afford a private lawyer or paralegal), the next steps would be to file a T2 (Tenant's Rights Application) against your landlord for failing to take steps to provide you with quiet enjoyment of your rental unit. Having documented evidence of the noise and problems is important as are statements from the witnesses. I would hope that filing an application would make the landlord realize how serious the issues are and hopefully this would get the landlord to finally take steps. If you are in a CMHA unit does this mean you have a worker as well? If so, you could ask the worker to help you locate a lawyer or clinic to assist you. While you can do this without one, the significance of the application will be clearer to the landlord if you are represented.

      Your landlord has a duty to ensure that you have quiet enjoyment of your rental unit. The noises you describe seem to be unreasonably loud and disturbing. Be prepared for the landlord to call these noises the "normal sounds" of apartment living. You will need to have evidence to prove that what you are putting up with is far beyond reasonable and normal.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  64. Hi Michael
    My fiancé and I moved into a townhouse in Ottawa and where the leasing agent told us prior to signing the lease the walls between all units were concrete. Turns out, they are not. This was a big selling feature for me as I work long hours and from home. We wanted this unit as it was a 3 bedroom and 1 room would be used as a home office for myself. I have only been able to use it about 5 or 6 times because the noise coming from the neighbouring unit is unrelenting.
    We spoke to the property manager who has done nothing to help resolve the issue. We have called security a total of 11 times and security officers have only shown up to our home four times. 2 of which are the only times the management company said they have on file. It has gotten to the point where we call so often that we wonder if our address is 'flagged' in their system for lack of a better term. Since we do not receive a ticket number or any other way to track a request for security to document the noise complaint, I started to record my calls to dispatch to show I am in fact calling and they do not show up. I have a recorded phone conversation between myself and dispatch requesting an officer and nobody came. I called back and got to speak with someone from dispatch who said that on the file it showed I 'hung up' before they could get my information. This is not correct and I again gave my information and nobody showed.
    I have documented emails showing that the leasing agent told us the walls were concrete. We tried to take advantage of the 7 day satisfaction guarantee the property management offers when you are not happy with your unit but our leasing agent said nothing was available for us and we had 'passed the guarantee window' when it was her that in fact did not return our calls until it was too late.
    We have documentation proving they entered our unit illegally and we have documentation to prove that when contractors came to clean our ducts, they brought a small child with them who was about 4 years old into our home unbeknown to us. We have a small dog and my fiancé happened to be driving by our unit when he saw the front door open. He was worried about the dog and when he came in, the contractors said they had put our dog into a bedroom as his son was with him. We were obviously furious that the property management company would allow a small child to be in our home with our dog and not inform us. They said someone from maintenance would get in touch with us, nobody did.
    We have documentation showing when we moved in we were missing the closet doors on all closets in the home. Janitors came and scratched and dented our walls and we were told to fix it ourselves. The company would leave paint on our doorstep. We have documentation as well showing that I tried on 2 different occasions to escalate the noise issue within our rental company and both times my request was not returned or followed up on.
    We have audio recordings of the amount of noise coming from next door as well and feel that we were mislead into signing our lease on false terms. We filed a T2 and are waiting to hear on a date for proceedings. Do you think we are missing any other forms of documentation or have any tips before we go into the hearing? We did ask that the management company sound proof the neighbouring unit and they flat out refused and said we could move out if we wanted without penalty. We like our unit and do not feel we should have to move because we were the ones who were mislead.
    Thoughts?

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    1. Hi: It certainly sounds like this is the wrong place, wrong landlord, wrong neighbours and wrong maintenance people for you. The facts your recite range from unusual to downright strange. It seems to me that you are doing well in documenting the complaints and that you have gathered good evidence of what is happening in the unit. If I had any comment, I would put some thought into what kind of remedies you need to win in order to solve these problems. I think an adjudicator will be looking at this and thinking "how am I going to make an order that solves these problems?". It will be up to you to make suggestions in this regard.

      The noise from the neighboring unit is the biggest ongoing concern. You advise that the landlord is refusing to soundproof--do you have any quotes or professional advice as to how that may be accomplished? It might be useful to have such a quote/advice handy for the Board.

      Focus further on your remedies and justification for what you are looking for. The closet doors, paint, knicks and dents, etc., are T6 type of issues but clearly these are things that need to be fixed.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  65. I am a tenant and I have been dealing with noisy tenants in the neighbouring apartment since February. All of the tenants who share a wall, floor or ceiling with the noisy tenants have complained to the landlord, called police several times, and written letters. Our landlord followed the appropriate process to evict and I attended the hearing as a witness. The offending tenants claimed ignorance, in spite of police visits, notices, etc. In spite of the evidence and witness testimonies, the presiding member gave then another 30 days to comply. While they have gotten better, they are still prone to bouts of shouting, both indoors and out, playing loud music on their mopeds while entering and exiting the parking area, parking their mopeds illegally in visitor parking spots (to avoid paying for parking spots), welcoming visitors at all hours, and having police show up regularly to their door, pounding and calling their names but refusing to answer (even when I know for a fact that they are home). My landlord is not negligent in this situation. He's trying very hard to serve and keep his good tenants. The system seems to be failing to protect our rights. What can we, as the affected tenants, do in this situation??

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    1. Hi: Without having the Order from the Landlord and Tenant Board it is difficult to know what exactly happened at the hearing. I presume from the 30 days to comply comment that the Board found that the complaints were valid but that they were being given a second chance. The second chance could be the exercise of discretion under section 83. That condition is usually that the tenants stop the behaviour complained of. If the behaviour is not stopped then the landlord can apply under section 78 for an eviction order based on the breach of the condition. If this is what happened, then you need to help your landlord by collecting evidence and proof of the breaches. The landlord can then file with the Board for eviction.

      The process is sometimes slow and frustrating. However, if you keep at it and have the support of your landlord you will eventually prevail (if the behaviour continues).

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  66. Hello
    My Mother has been renting the same apartment for 17 years, for the last 13 her brother has lived with her. No interior updating has been done since she has been there, same paint, carpet, floors etc. There is a wait list for her building and as tenants are moving out they are renovating the units. In March she received a letter stating that there was a complaint about smoke coming from her unit into the hallway. She called and informed them that no one smoked in her unit ever. She received another letter in April and again told them no one smokes in her unit. Her brother smokes on the balcony(ground floor unit) and the door to the unit from the balcony is always closed. Again she received another letter at the end of May. This time I sent an email to the property management company informing them that no one smokes in her unit, they did not reply but called her to tell her that they had , had complaints of smoke coming from the unit into the hall. She has now received an N5 with a listing of all the supposed times that smoke was coming out from under her door and affecting the other tenants. This is starting to border on harassment, how many times do we need to tell them that no one smokes in the unit, we have offered for them to come in and check the walls for residue, smell the linens/clothes/curtains/blinds/furniture. There is no smoke smell in any of these and if there was so much smoke it was going into the hall and disturbing other tenants you would think all that stuff would stink. We believe one of 2 things, they want her unit to rent out or these are malicious complaints filed by a tenant that she complained about last year. How do we proceed?

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    1. Hi: Serving an N5 notice, in good faith, is not going to amount to harassment. In time, if the number of Notices continues and the allegations are groundless a case be made out that the landlord is making allegations in bad faith and that this amounts to harassment. Until then, however, there is not much you can do about receiving the complaints. What you have done is entirely proper.

      You don't mention if the landlord has responded or whether the landlord has accepted the invitation to inspect the unit. I presume that they haven't. Certainly, the failure to inspect confirms your belief that this is about something other than solving a "smoke" problem.

      If your mother has some resources it would be wise for her to retain a lawyer or paralegal--experienced in landlord and tenant proceedings before the Landlord and Tenant Board (these can be hard to find). Administrative tribunals like the Landlord and Tenant Board don't function like a Court and the manner of proceeding is completely different than a Court---hence it is key to retain someone with experience.

      Presumably, your mother will soon receive in the mail a Notice of Hearing from the Landlord and Tenant Board. She will need to attend that hearing to defend herself. She is not required to have a lawyer or paralegal but it certainly can ease the stress and make things go more smoothly if she is represented.

      If she represents herself, or you go with her to help her, I would make sure to bring copies of the letters/emails to the landlord advising that no one smokes in the unit (bring three copies). Bring copies of the email/letter inviting the landlord to come and inspect the unit for smoke. Then have with you a witness or two--neighbor, friend, anyone reputable who has the time to attend, who can testify that they have been in your mother's unit and that there is no smoking in the unit. Further, perhaps have a few letters from friends, family, neighbours, guests, service providers, explaining how often they are in the unit and that they have never witnessed smoking in the unit and that the unit does not smell like smoke etc..

      While the landlord has the burden of proof in the application, if you are able to prove that smoking does not happen in the unit then you are much more assured of a good outcome--I.e. dismissal of the application.

      Good luck

      Michael K. E. Thiele
      Quinn Thiele Mineault Grodzki LLP
      www.ottawalawyers.com

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    2. I should mention, as the question is often asked, there is no effective way to recover costs and legal fees in the Landlord and Tenant Board Process. If you mother retains a lawyer or paralegal it will be at her own expense without any reasonable chance of recovering the legal fees paid to them.

      Quinn Thiele Mineault Grodzki LLP
      Michael Thiele
      www.ottawalawyers.com

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  67. Hello Michael: I am a tenant, in Toronto, in a 50 unit building.In April 2015, the building changed landlords after being sold. The landlord embarked on many renovations. In the middle of June the landlord invited tenants to a 5:30 pm meeting, in the lobby, to provide information concerning the renovation of balconies. It turned out that the information was vague and that the landlord didn't have many of the answers the tenants wanted. Furthermore, some of the landlords positions (e.g. not providing compensation for the period of time that the balconies would be unusable) were disagreeable and I made this known at the meeting. The vagueness, lack of answers and the landlords position on certain matters led to my frustration which led to me raising the volume of my voice in expressing my dissatisfaction. One of the landlord's staff responded in a curt manner which led me to raise my voice even higher. Essentially, we had an argument and both the landlord's representative and I raised our voices. There was no physical contact, cursing or name calling from either side. Recently I received N5 and N7 Notices for Eviction that alleged that I threatened the safety of the landlord, etc. What should I make of the notices? Does the N7 stand a chance of leading to an eviction if the landlord elects to file for an eviction? In closing, I should say that I am part of a multi-party application against the landlord for loss of enjoyment and that my lease provides for rent that is 30-40% less than that of units that have been renovated and rented to tenants without security of tenure. Your insight would be appreciated. Thank you.

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    1. Hi: I bet if you google "SLAPP LAWSUIT" and read the description of that kind of lawsuit you will see and feel that this reflects what is actually going on with the landlord's actions against you. It is interesting that you received an N5 and an N7--presumably using the identical grounds in each? Often enough the wording is identical and pasted into both forms. I find the use of two Notices of Termination, for the same grounds, as nothing more than an intimidation tactic and an attempt by the landlord to reserve a right to serve a second notice of termination if anything happens in the following six months while also wanting to use the same grounds to take a kick at the can and attempt eviction using the N7. This mixed use of two Notices for one alleged ground of eviction is largely condoned at the LTB as multiple notices may indeed be served under the RTA (query whether this should allow multiple notices for the identical issue--especially if one of the notices is voidable?). While condoned, I do think there is an argument to make that both Notices are void where one is voidable and one isn't for the same alleged grounds. I don't think that Notices of Termination should be served as a form of alternative pleading (i.e. if not "this", then "this" (if not A then B)).

      Anyway, I digress. The only legitimate reason to serve an N7 is to be in a position to file an application to terminate and evict. You should assume that such an application will be forthcoming. You will indeed have to defend the application as the Landlord will be seeking your termination and eviction. As your unit rents for 30-40% less than renovated units it seems unlikely that your landlord will want anything less than an agreed upon termination date as a resolution of the application--i.e. at mediation they will "compromise" by giving you more time to find a new place and move.

      Given what I presume is a good deal on your apartment (at least rent wise), you will want to keep it. This means that you will have to defend the application brought against you by the landlord and you will need to be ready to fight. Given that you were vocal at a landlord and tenant public meeting you may have been identified (informally) as one of the ring leaders in the building and perhaps this is clear from the multi-party application of which you speak. Hence, there will be an interest in trying to resolve your tenancy and participation in the group (i.e. SLAPP). If you are accurately describing the interaction with the landlord (loud voices--argument), then I am sure that the landlord also knows that the case against you is weak. Yet they bring the application anyway without any real consequence against them even if they lose (i.e. no costs, no sanctions).

      You will need to be ready to defend the application brought against you. This means getting witness statements from all those at the meeting. If you could get written letters from those present explaining what they saw and heard. Further, identify some well spoken and credible people who were there who will "for sure" come to a hearing at the LTB. You will want to have live witness testimony that is supportive of you. Did anyone by chance record the encounter--video or audio? It could be useful.

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    2. You will of course defend the application on the basis that you did not impair the safety of any person. You will take issue with the allegation and seek to prove the opposite. While you do not have the burden to prove anything (the landlord as applicant must prove that you impaired safety), the best defence will be to prove the opposite. Do raised voices and an argument constitute "impaired safety"--especially in this context? In my view the suggestion that it does is absurd and I would like to think that heated, passionate , and perhaps even "offensive" debate is still permissible in this province. The RTA does not mandatorily impose politeness or other restrictive social code that does not apply in society generally---or at least in my view it shouldn't. That however, is the fight you're going to have. The landlord's representative will make all sorts of "impaired safety" allegations because of your tough and loud words (and here I presume your description of the interaction is accurate--i.e. no raised fists, threats to throw anything etc.).


      If this proceeds to a hearing it may be tough to stand up against the landlord. It may be tempting to do a deal that implicitly acknowledges wrongdoing on your part but which perhaps maintains your tenancy on "conditions". You may feel this pressure from the mediators to make a deal. The landlord may be ready to make a deal and may be satisfied to "win" something that simply pushes you back on your heels a bit (remember SLAPP). How you deal with this is up to you though I expect the pressure will be high in a 50 unit building where renovations are in issue and there are below market rents in the range of 30-40% below market---this represents a significant amount of money.


      Aside from merely defending the landlord's application (presuming N7 is pursued), you can think about filing an application of your own. Take a look at the T2. Can you build a case of harassment and intimidation? Is this N7 not just that (at least from your perspective)? Is serving a Notice of Termination harassment? (the answer is generally "no" to single notice but over time it can be "yes"). Were you served for trying to enforce your legal rights? Take a look at section 83(3) of the RTA---it is like an anti-SLAPP provision. The best defence could be a strong offence if both of these notices are served in retaliation for standing up for the group and for being a (leader?) member of the multi-party application. Whether you win a T2 application against the landlord or not is perhaps beside the point. It is an aggressive response to the landlord's tactic (presuming it is fair to call the N5 & N7 a tactic) and certainly the evidence in what will be a lengthy hearing should turn to your favour. Further, if corralled into mediation (which is generally a good thing) you can address demands for "conditions" by responding with your own demand for "conditions" such as the landlord will not longer intimidate, interfere with, or harass you and other tenants in the multi-party application. Of course, don't expect a "deal" at mediation by making demands like this but it is the opposite of rolling over and the landlord (or its counsel), may decide that this little N7 charade has failed to evoke the desired response and they may just withdraw the application if you agree to drop yours.

      Now, I have made a ton of assumptions in this reply and you should be aware that the lay of the land in any application(s) changes right before your eyes--witnesses (show or don't), surprise evidence, party show (or don't), the particular adjudicator assigned, the length of the list, and other unexpected events (perhaps at the building) all have a significant impact on how a case unfolds and it is impossible to know what will happen with any certainty until it happens.

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    3. For this reason it can be a good (great) thing to have a lawyer or licenced paralegal onboard. The key is to have a lawyer or paralegal who is very experienced at the LTB and knows the RTA inside and out. The experience at the LTB is important because the LTB is an administrative tribunal. The "rules" in this environment are often shocking to lawyers who spend their time in the Superior Courts. There is no examination for discovery, no documentary discovery, vague pleadings, no rules of evidence other than there are no real rules--everything just goes to weight (even hearsay), and the manner of case presentation is entirely at the discretion of the adjudicator. Strategic advantage is easily gained by the experienced representative in an atmosphere where the LTB is directed to have an expeditious resolution of cases on crowded dockets with overworked adjudicators who are rather poorly supported and under appreciated by the "Social Justice Tribunals". If you can afford a lawyer or paralegal, who knows how the LTB works, it would be worthwhile to retain one.

      Hope this helps you out a bit. Again, I make a lot of assumptions in responding to you. You should seriously consider getting legal representation. If your monthly rent is 30%-40% below market this might be something worth really fighting for.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  68. Hi Michael,
    My boyfriend and I live in a single household dwelling that has been turned into two separate apartments. One upstairs (that is us) and one on the main floor and basement. We have separate entrances. Recently we have received a drum kit from my boyfriends father and only play it during the times permitted in the bylaw. We have talked to many bylaw officers who all say that we are within our right to play the drums. Our landlord has threatened to evict us because the drumming is bothering the neighbour downstairs. A little background info on the neighbour downstairs, she has been consistently complaining about us since January. One time there was a thumping noise from our bathroom which just turned out to be her light fixture was just loose. She has complained that we walk to loud, that we slammed the door once( our door opens outside instead of inside due to the stairs being right there so the wind caught the door.) She was banging on our door at 11pm complaining that we were cooking too late. She has complained that our air conditioning unit is too loud yet she has the exact same air conditioner in her apartment unit. We have tried to talk to the tenant downstairs to see about putting aside half an hour a day for us to play the drums but she refuses to talk to us and says she finds the drums to be intolerable. We have since ceased playing the drums. Today our landlord threatened again to give us an eviction notice because apparently we were stomping going up the stairs. I am a heavy set woman, I am not the lightest walker. She keeps saying that she can evict us because we are interfering with the tenants enjoyment of the apartment. Can she evict us for being loud walkers? Our apartment is not up to code. The only thing separating our apartment from the neighbour downstairs is a thin piece of dry wall. There is little to no insulation and hardwood floors that are all warped and cracked. It feels like we cant breathe in our own apartment and have to walk on eggshells so we do not bother the woman downstairs. Any help or info would be greatly appreciated.
    Thank you!

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    Replies
    1. Hi: Take a look at my article (in this blog) entitled "The neighbours noise is driving me crazy". The most recent comment in that article speaks about a tenant who is receiving complaints because their two year old daughter gets up early and makes normal living noises.

      The shorter answer to your question is that the drums are likely not ever going to get the okay in an apartment building. The legal question is not what the by-law says is okay with respect to the noise by-law. In the context of a residential tenancy the question is whether you are substantially interfering with the reasonable enjoyment of the premises. Hence, "what" you are doing matters a great deal. I don't see an adjudicator ever giving the thumbs up to drums as the noise (or ahem, music), is simply too loud.

      With respect to the other complaints--these I think you have a great argument on. You are allowed to live normally. Eat, drink, cook, watch t.v., talk, sing, listen to music, all of these things are normal and reasonable things to do. You can't be required to tip toe around in your own home.

      That being said, is it s fair bet that whoever is unlucky enough to get the downstairs unit is going to find it loud? It seems to me that the problem isn't the tenants---it's the construction of the building. If these two units were not purpose built as separate rental units then there is no sound separation and nothing was done to insulate one unit from the other.

      You could call the landlord and ask him to investigate what kind of sound proofing could be done to address the neighbour's complaint. You could ask him if it would be helpful to call in property standards to have them inspect the condition of the property and to determine whether certain repairs should be made to solve the problems (a little tongue in cheek).

      Be sure to push back against the landlord and put your position and complaints to him in writing. Remember, you are allowed to live normally in your unit for which you are paying rent. A little courtesy to the neighbor never hurt but there is a limit to how much you can be asked to change the way you live. Set out for the landlord the frivolous complaints received and that the neighbor won't work with you. Advise the landlord that if the harassment of repeated complaints does not end and he doesn't take steps to insulate or sound separate the units that you will have to take it up with the Landlord and Tenant Board and Property Standards.

      If you can afford to do so, get yourself a lawyer or paralegal or even get help from a local community legal clinic. Don't feel bad, other than the drums--your behavior seems reasonable.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  69. We own a mobile home park. The act for a mobile home park in my opinion is not very good in relation to a lot of things that pertain to a mobile home park. We are required by law to have rules and regulations. That every tenant have been given. In our regulations it says that you have to pay your lot rental on time, it states that the sewer and water is to be paid to the park office separately as we get on bill to the park and each trailer is metered that we read and bill for water. Tenant has signed lease agreement that states this. It also states that we have a one pet policy and the city has changed the by law for mobile home park to one pet per trailer. Now I have served a tenant a n4 for non payment of rent and a n7 for interfering with other tenants enjoyment and causing problems due to parties every single weekend and constant complaints from tenants. We have given break after break with other notices sent. They wait until the time period is up and start all over again. We made it to a hearing only to have the tenant pay his lot rent the day before it was stated on his notice only to be told in front of the tenant that the n4 was now invalid even though he still owes us two months rent and also the judicator told us he did not have to apply his money to the water as the tenant board does not deal with utilities. The judicator then told me he didn't receive all my faxed pages and he was running out of time so now I had to resend by courier all my stuff again and wait for another hearing date. In the mean time the tenant came and dropped off payment for arrears lot rental but short about 6.00 and did not pay two months water as he heard the judicator say they would not hear eviction notices for utilities. So what does that tell me is that now this tenant thinks he can just not pay it, so before I know it the whole park can do the same! And I will be left holding this large bill every month. How does the landlord and tenant board have the right to say we have no right to evict someone for not paying their bills. We will be forced to shut down the park if we cannot get some help with this. Who can I contact for help. Tenant board tells us to get a lawyer and the lawyer looks at the tenant act? There is no clear rules for mobile home parks in Ontario. BC, Alberta, Manitoba all have clear regulations when it pertains to mobile home parks. How do you put in a complaint to get this changed. We will be forced to give everyone notice as we cannot run a business with the tenant board who acts only on behalf of the tenant.

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  70. The Tenants above me are soooo noisy they live in a 1 bedroom with two guys...one who sleeps in the bedroom, the other who sleeps in the Dining room area. They frequently have 2-3 kids staying over or living with them not sure which and they are soooooo noisy. I have complained 2 times already and my super and the building manager have done nothing. I live in Mississauga do I have any options besides moving out? They are always so noisy and I have tried to ask them to quiet down and they just ignore it....I can't sit and read or study or anything in my own home....Sometimes they even wake me up at night!!!!

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    Replies
    1. Hi: You do have options. You should write to the landlord about the problems you are having. Keep copies of your letters. Note in your letters the dates and times of what is disturbing you. Explain how it is impacting you. Follow up with the landlord at reasonable intervals about what the landlord has done. It is entirely possible that the landlord will do nothing. After not getting a reply from the landlord write a letter to the landlord confirming that you are being bothered by the noise and request that the landlord send in an expert to determine what the problem is with noise transfer (i.e. why is it so loud)and ask the expert to make recommendations. This too, will likely not result in any action if your original complaints received no action. Then write one last letter to the landlord advising that you will be filing an application to the Ontario Landlord and Tenant Board seeking an order for a rent abatement and an order requiring the landlord to take action--including hiring an expert to determine the issues with noise transfer. If the landlord still does nothing, proceed to file you application with the Landlord and Tenant Board. Take a look at the Form T2 with the Board--not the powers of the Board. It will be important for you to be able to prove the noise you are dealing with. If you can make recordings that would be great. If you can get other people who would be willing to come to the Board to testify to listen to the noise that would also be helpful. Lastly, keep a detailed log of dates and times of the noise and describe the noise for each instance. This will be useful evidence at the hearing.

      Your landlord, if taken to the Board, will be forced to finally to do something about your complaint.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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IMPORTANT NOTICE

Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.