Saturday, 9 March 2013

Evicting the Noisy Tenant (PART 2)

Back in October 2012 I wrote a blog respecting the legal process to follow to evict a tenant who was making too much noise.  As all landlords discover, a noisy tenant creates many problems for the other tenants in the building.  Other tenants can't sleep, can't have guests over, and they simply lack the ability to reasonably enjoy their rental unit when the noisy neighbour continuously disrupts them.

In time, the noisy tenant causes "good" tenants to give their notice to leave the building or alternatively the "good" tenants start with-holding rent and demanding rent abatements until the noisy tenant is dealt with.  Regardless of how they deal with it--the fact is that the noisy tenant over time will cost a landlord rental revenue and increase expenses associated with the turn-over of rental units.

This blog continues on from the technical perspective first outlines in the October 2012 blog.  If you are reading this, it is worthwhile to go back and read the October blog as this blog is a continuation of what is described in it.  The October blog is still current and accurately reflects the law in Ontario to the present date.

As a background, let us assume that you have a tenant who simply can not turn the stereo down.  Everyday, every night, the booming base speaker vibrates through the building disturbing other tenants.  The stereo seems to never be turned off before 1:00 a.m..  Your other tenants have complained about this repeatedly and continuously.  As a consequence, you served a Form N5--Notice of Termination, on the tenant.  That form, from the Ontario Landlord and Tenant Board is located here.

The Form N5 (termination of a tenancy for substantial interference with reasonable enjoyment--i.e. through noise, behaviour etc.), is by its nature a voidable notice.  This means that a tenant, who receives a notice of termination for noise, behaviour etc., in Form N5 is given an opportunity to correct their behaviour and not be evicted.  To be clear, this is not about a Landlord being "nice" and giving the tenant another chance.  The law requires the landlord to give the tenant this chance as the Form N5 is structured this way in the legislation.  Unless you can find another Notice of Termination that fits the conduct complained of--you are stuck giving the tenant a second chance through the form N5.

The second chance takes the form of the tenant stopping the behaviour complained of.  In our example, on the service of the Form N5 the tenant has 7 days from the date of service of the Notice to stop playing the stereo so loudly as to disturb the other tenants.  In practical terms--this means that starting on the day after the service of the Notice of Termination the tenant is required to not make noise that is disturbing.

You may wonder what happens if a tenant stops playing the stereo (hence stops the conduct complained of) but instead starts singing at the top of their lungs such that it can be heard throughout the building in the seven day period following the service of the First N5--Notice of Termination.  The short answer is that the Notice of Termination is most likely NOT voided if the tenant replaces one noise making activity with another.  The point of the first N5 is to not only stop the stereo music but also to stop disturbing the neighbours with undue noise of any kind.  To this end, it is worthwhile to draft the details section of the N5 in a broad way so as to encompass more than just "stereo noise".

The October blog presumed a situation where the tenant did not comply with the first N5 notice.  As such, the landlord was able to apply to the Landlord and Tenant Board in FORM L2 based on the first N5 notice.

However, for the purposes of this blog, what happens if the tenant does indeed stop making noise?  Let us assume that by a strange coincidence that on the morning you served the FIRST form N5 that the tenant was getting on a plane to go away for a two week vacation.  The tenant's rental unit was locked and empty for two weeks--no music, no noise whatsoever.  

The effect of the tenant being away on vacation is that the First N5 Notice has voided because the tenant has corrected the behaviour (i.e. stopped making noise that is bothering other tenants).  This means that the tenant can not be evicted for the stereo noise that s/he has been making on a regular basis.

As the landlord, after service of the first N5 you will have checked with neighbouring tenants to determine whether the tenant has complied with the Notice of Termination.  Maybe, based on the lack of complaints and happy neighbouring tenants you form the opinion that the first N5 worked and the problem is solved though unbeknownst to you the problem stopped not because of the N5 but because of the vacation.

Even though the first N5 has voided (by the tenant stopping the noise), this does not mean that you should throw it out.  The voided first N5 still has value for six months as the basis to serve a Second N5 Notice.

WHAT IS A SECOND N5 Notice?

It is the exact same form as the first N5 Notice.  However, on the second page of the Notice you will see a different box to tick off indicating that the Notice is a second and not first Notice.  There are a few  important differences between a first and second N5 even though they are served using the same form.  A second N5 contains a shorter termination date--it only needs to be 14 days whereas the first N5 required a 20 day notice.  Also, the second N5 is NOT voidable.  This means that a tenant can not correct the by complying (i.e. stopping the behaviour complained of).

So, using our fact scenario, let us assume that the tenant returned from vacation after two weeks.  While s/he noticed the N5 under the door of the unit, s/he didn't seem to be too concerned.  That night, the stereo was cranked up again until 3 in the morning disturbing all of the neighbouring tenants.  All of the tenants who has been enjoying the tranquility caused by the noisy tenant's vacation call you the next morning to complain.

What you need to do is to collect evidence and statements from neighbouring tenants about how they are disturbed.  You need the Who, Where, Why, What, When and How of the nature of the disturbance.  Presuming that the incident is substantial and not just a trifling matter, you would then fill out a second N5 form, inserting all of the required information in the blank spots along with the precise details of the problem.

Because the second N5 is not voidable, you should only fill it out if you intend to seek termination and eviction of the tenant.  Otherwise there is no point or benefit in filling out the form.  At the same time, you should fill out the Application Form--which for an application based on N5's is Form L2.

THE HEARING PROCESS

Once the second N5 is served on the tenant, you will be taking a copy of the first N5, along with a certificate of service proving how the first N5 was served, along with a copy of the second N5 and the certificate of service proving how it was served, along with a complete form L2 to the local office of the Ontario Landlord and Tenant Board.  If you live in a region that does not have a Board office you may wish to contact a Service Ontario office to file the application through them.

At the Landlord and Tenant Board you would provide the clerk with a copy of all of the above noted documents.  The clerk takes the documents and scans them all.  Upon payment of the $170 fee, the clerk will issue a Notice of Hearing and return a stamped an issued L2 application to you.  At the present time the clerk will still be giving you two copies of the documents--one for your records and one for you to serve on the tenant. Please make sure to retain copies of the N5's as the clerk will not be returning any N5's to you--the ones you file will be retained in the Board file.  You will need copies of the N5's for the hearing.

THE ACTUAL HEARING

On the scheduled date of the hearing you will attend the Board to present your case.  It is important to realize that this is a serious matter requiring you to meet a burden of proof on a balance of probabilities. Notwithstanding the informal nature of the proceedings, the consequences of your application are serious.  Hence the Board will expect you to present evidence that is clear, cogent, and compelling.  This means that you should be prepared to call witness to testify about the incidents you described in the first N5 as well as the second N5.  Letters from tenants, affidavits, or voicemail messages are generally insufficient to meet the burden of proof.  You need to have live witnesses who can explain what they experienced and who are available to be cross examined.  

If you attend a hearing without proper witnesses and the tenant attends and takes issue with your application you can reasonably expect to lose.  If the tenant testifies that she keeps the stereo at a reasonable level--that she has spoken with all of the neighbours and they have all told her there is no problem---then your case dissolves into nothing if you don't have a witness from the building present to explain that there is indeed a serious problem with noise from the noisy tenant.

DO YOU WIN?

Even if you prove all of the elements of the N5's and establish that the neighbours were indeed bothered by the noisy tenant you need to be ready for the possibility that the adjudicator will give the tenant another chance.  This is known as relief from forfeiture under section 83 of the Act.  You should read, another blog in this series entitled BEATING THE SLAM DUNK EVICTION to see how your noisy tenant might seek to defend against your application.  Once you understand how section 83 relief works--you might wish to be ready to lead evidence beyond the scope of the incidents set out in the N5's.  You may wish to lead evidence of the hardship caused by the tenant, the number of tenants you've lost, the rent abatements you've paid to not lose other tenants, the number of attempts to get the tenant to behave, and all of the efforts you have gone through to deal with the problem.  What you will try to do is show why it would indeed be unfair to refuse the eviction.

IS THIS CONFUSING?

The N5 process, the various notices, and the hearing and application process is indeed very complicated.  The technical nature of the Notices result in many mistakes and many dismissals of applications.  Landlord's are frequently frustrated by the N5 process and if you find that the process is a little murky I can tell you that you're not alone!  Given that noisy tenants can have such a severe impact on your bottom line rental income it is worthwhile to retain professional help to take you through this process.

Michael K. E. Thiele
Lawyer
QTMG LLP
Ottawa, Ontario

2 comments:

  1. Oh Christ... this sounds like a crazy process. What if it's an apartment situation, and the noise is really only disturbing one other tenant and not the rest of the building? He's threatening to leave because the music is loud through the walls. But the offender claims she is not listening to music all that loud and is annoyed at the tenant making the complaint. Do eviction chances get severely reduced if it's only 1 tenant with the issue? And how does the LTB interperet the word "substantial"?

    ReplyDelete
    Replies
    1. Normally a reference to the Lord in a comment would warrant passing over. But given that it's Easter I'll assume your reference was to seek his assistance. Anyway, disturbing one tenant is indeed enough to terminate a tenancy. If you get an opportunity to hear the music then you should be able to tell if the music is too loud. What kind of building is it? Are the walls thin, can you hear everything that's going on in the building? What is acceptable and what must be tolerated is a contextual question. Certain buildings are like drums where normal living sounds are amplified. In these buildings the Landlord and Tenant Board will consider noise differently than in buildings where the construction is such that normal living sounds are confined to the rental units. In my experience, "substantial" is noise that disturbs beyond the normal sounds of living. Hence there is the basic hum and sounds of a building that everyone must accept. If the complained of sound exceeds the normal hum of the building then it is substantial. Tenants do not have a right to perfect quiet but must tolerate the normal sounds of a building in the context of communal living that is living in an apartment building. Music, a television, doors opening and closing, beeps of a microwave, clock radios, alarm clocks, foot falls, babies crying, etc. depending on how a building is constructed may indeed be sounds that do not amount to substantial interference as it is impossible to live in the building without hearing these sounds of every day life. It is when any of these sounds rises above the normal background that there is cause for complaint and action to be taken by the landlord.

      That being said, proving that noise is substantial or excessive is very difficult. If at all possible, getting By-law to attend the property and have them ticket the offender (if warranted) is very helpful in proving your case. If you can't get by-law then you need to think about getting some kind of objective evidence or something that corroborates the complaint of the tenant hearing the music. Without such evidence, the case becomes a he said--she said credibility contest. And because you, as the landlord, have the burden of proof, you will likely lose the application if all you have as evidence is two tenants disagreeing with each other.

      Michael K. E. Thiele

      Delete

Search This Blog

Loading...

Follow by Email

About Michael Thiele

My Photo

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.