Friday, 25 April 2014

The Neighbour's Noise is Driving Me Crazy!

As we head into spring here in Ottawa---and hopefully summer soon---a seasonal stressor for many tenants is about to occur.  Windows will open, decks will be occupied, porches will have parties on them, and there will be music, shouting, laughing, yelling, etc. etc. etc..  These sounds of summer will bother many tenants and frustration will mount and the question will be:  What can you, as a tenant, do about the noise and parties caused by your neighbouring tenants?

The Residential Tenancies Act (RTA) is the law that governs the landlord and tenant relationship.  The RTA does not provide any direct right for one tenant to sue another tenant at the landlord and tenant board.  A tenant can not file a claim to have another tenant evicted from their home---regardless of how bothersome and annoying the actions of a tenant might be.  With respect to actions by your neighbours---there is nothing in the RTA that lets you bring direct action against that neighbour through any of the applications that the Landlord and Tenant Board will accept.

DO YOU JUST HAVE TO SUFFER?

While there is no direct right of action against a neighbour tenant, the RTA does provide you with some recourse and a way to deal with the problem caused by noisy neighbours.  The RTA contemplates that you deal with your complaints against neighbouring tenants by getting the Landlord to take action against the neighbours.

The RTA is structured in such a way that there are responsibilities imposed on tenants which includes not to substantially interfere with the resonable enjoyment of the premises by the landlord or other tenants.  When a neighbour disturbs you with noise, that neighbour is breaching the legal obligation to not disturb other tenants in the residential complex.   By complaining to the Landlord about the disturbance, the landlord is required to take action.  That action is first to investigate, collect evidence, and substantiate the allegations.  Then, the landlord may choose to speak with the offending tenant or alternatively decide to serve a Notice of Termination and if it is for noise it is likely a Form N5.  The offending tenant then must comply with the Notice of Termination or risk losing their apartment when the landlord applies for eviction to the Landlord and Tenant Board.

The foregoing is how it is supposed to work.  What drives many tenants crazy is that complaints to the landlord seem to fall on deaf ears.  Nothing seems to happen.  The landlord does not acknowledge the complaints or says that there is nothing he can do.  Meanwhile, the tenant who is hearing the noise suffers from sleepless nights, etc., from the rowdy and loud neighbour.

So, if the landlord does nothing, do you have a remedy?  In fact you do.  The RTA requires the landlord to provide you with quiet enjoyment of your premises.  This essentially means that it is the landlord's responsibility to make sure that you get the benefit of the apartment that you rented from him.  This means that the landlord is not allowed to simply ignore your complaints about noise.  The landlord must investigate, take steps, and seek to evict the offending tenant if no resolution can be reached.

If your landlord fails to take these steps, your landlord is breaching his legal obligations owed to you under the RTA.  This breach entitles you to file an application to the Landlord and Tenant Board against the landlord.  The basis of the application is that the landlord is failing to deal with a tenant who is making noise and who is disturbing you and who is therefore interfering with your quiet enjoyment of the premises.  To file such an application you would use form T2 which is available on the Landlord and Tenant Board website.

Of course, when you get to the point of being upset enough that you want to file and application---you should make sure that you are in the best position to win the application.  As you will be asking for money, an order that the landlord deal with the issues, maybe termination of your own tenancy so you can get out, or perhaps even a fine, it will be very important that you have the necessary evidence to win your case.  As you will be the "applicant" (i.e. the person who filed the application), you will have the burden of proof to establish that the landlord has breached his obligations to you.

WHAT KIND OF EVIDENCE SHOULD YOU HAVE?

At its heart, your application arises because you are being disturbed by your neighbours noise.  Hence, you need evidence of the noise.  By-law reports, police reports, statements by neighbours, photographs, video and audio recordings, calls to the landlord--all of these things and anything else you can think of that proves the nature of noise you are suffering will be important evidence to have.  It is important to have this evidence because you landlord could simply deny that there is a problem and say that there is no evidence that the other neighbour is doing anything wrong and that you are just whining or have some other unresolved issues.  Having evidence of the noise/disturbances takes this argument away from the landlord.

Once you have the evidence, you need proof that you complained to the landlord about the disturbances and that you did so regularly.  That proof is great in emails and faxes as proof of delivery of the complaints is easy to establish.  In communicating with the landlord provide the landlord with your evidence, explain what is happening and explain how it is affecting you.  Offer the landlord your assistance in dealing with the problem.  If the landlord fails to respond, write again, and again, and again.  Once you have written a reasonable number of times and have allowed a reasonable amount of time to pass, write one last letter to the landlord informing him that his failure to deal with your complaint is interfering with your reasonable enjoyment of the premises and that you intend to file an application to the Landlord and Tenant Board.  Wait a few days, and if there is still no response from the Landlord, file the application.

You will see in reviewing the T-2 Form that there are many different types of remedies that you can ask for.  What you demand will depend on your particular circumstances.

The hope is that the T-2 application will finally get the Landlord's attention and hopefully he will take steps to address the issue.  If not, the Board will fashion a remedy that should assist you in gettng the quiet enjoyment of your rental unit that you are legally entitled to have.

Michael K. E. Thiele\
Ottawalawyers.com 

48 comments:

  1. Dear Michael,

    This is very nice post to explain the noise issue on the tenant side. But, How about the owner. I am a landlord and own an unit in a multiple units building. Now I have an issue that the owner under my unit has always complain the noise issue caused by my tenants even if there is no people in my unit. He called the police once and the police didn't find anything wrong with my tenants, but, he still keep complaining to the building management and said he will sue me and building management now. as you posted information, Landlord should have a responsibility to protect the tenants if there is nothing wrong with the tenants, right? In this case, what I can do to stop him? I have done everything what I can do, such as adding the soundproof layer on the floor and asked my tenants adding softer pad under the furniture. But, he still complains for no reason. one of my tenants sent email to me to complain she is not feeling comfortable and safe in the apartment. It is possible to sue him that he is bullying my tenants?

    Thanks,

    david

    ReplyDelete
  2. Dear Michael,

    It is nice post and I understood more about how to protect the noise issue on the tenant side. But, It is possible to explain how the landlord does the work to protect the his tenants. In my case, I am a landlord, and I rented an unit (in the muti-units building) to my tenants. In the past few years, the owner under my unit keeps complaining the noise issue to my tenants. he called police once and the police didn't find anything wrong with my tenants. but, he still keep complaining to the building manager after I added the soundproof layer on the floor of bed rooms, living rooms and hall way. and he also sent email to manager that he will sue me and building manager for this. because of his behaviours, My tenants also complained to me that they don't feel safe and comfortable to live in the apartment. in my situation, what I can do to stop him? Can I sue him because he is bullying my tenants?
    Thanks,

    david

    ReplyDelete
    Replies
    1. HI David: I will presume that your unit is in a condominium as you are talking about different owners in an apartment style building. The relationship between you and the other owner is not governed by the Residential Tenancies Act. Your problem, in time, is going to be with keeping your property rented out. Your tenants will simply give notice and move because they are being harassed by this neighbour (presuming that the complaints are unfounded). You should take this up with the condo board and ask them to consult with their counsel about this problem. If the neighbour is complaining about normal building noises he is going to have to get used to it (and be quiet) or sell his unit and get out. The Landlord and Tenant Board is not going to be able to help you with the neighbour.

      Michael Thiele
      www.ottawalawyers.com

      Delete
    2. Hi Michael,

      Thank you for your answer. Yes, I do owned a unit in an apartment style building condo. And I just received a legal letter in last weekend from the condo board. I was surprised that condo board blamed my tenant and me that we didn't do any thing to stop the noise without any proof. And my tenant and I will be charged for all costs incurred by condo board to take any steps to deal with this problem. Here is what the letter said:
      1. " ... you have been advised about these noise complaints over the past several months and, to date, you have done nothing to rectify the matter".
      2. "bylaws and rules of xxxx (condo board) state that if xxxx(condo board) needs to take any steps to deal with this problem(including retaining our law firm to write this letter), all costs incurred by xxxx (condo board) will be charged to you Unit and collected from your and your Unit in the same manner as common expenses."

      As I said, I have added the sound proof layer in the bedrooms, living rooms and hallway area. my tenants are really care for on this as well.Does that still means I have done nothing to rectify the matter?

      As the additional information, there is what this neighbour made the comments after I completed renovation on master bedroom and hallway.
      “… I think that this reno should take care of most of the noise, but please keep in mind the mirror behind the door that was banging around which you have fixed. So other things to consider, bed headboard banging against the wall, the rails for the closet doors should be raised off the concrete and night tables or clothes units away from walls so when drawers are close the unit will not hit the wall causing noise …”
      I think you should know what kind of person he is based on this comment.

      anyway, If the condo board still keep saying the noise issue caused by me and my tenants, Do you think I can do the legal action against the condo board to protect my rights? or what's the proper way to solve this issue legally?

      Thanks again,

      david

      Delete
    3. David: The short answer is that you need a lawyer experienced in Condominium Law and you need to take steps to collect objective evidence on how sound travels in this building and on how your tenants are living in this rental unit. You appear to have accepted your tenants' word on how they live and how they behave in the unit. Hopefully your faith in their statements to you is well placed. You need to allow for the possibility that your tenants are indeed causing the problems that are alleged against them and protect yourself accordingly. At this point in time, the Board has clearly accepted the word of the downstairs owner and is backing him up with the financial resources of the condo (which includes your condo fees). The Condo could indeed take you to Court as well as your tenant and the Court could indeed make Orders against you and your tenant. The Condo, if it wins, would ask for costs and it would impose its costs on you by putting a lien on your unit if you did not pay voluntarily. You need to get representation and engage the condo board in such a way that you can demonstrate that the downstairs neighbor/owner is making false claims or is not making reasonable demands. Presumably everyone in the building hears the same noises from their upstairs neighbours--but if not, perhaps there is a construction defect? If your tenants are living normally then perhaps the neighbor is complaining about noise that is not actually originating from your unit. These things need to be explored objectively and preferably in coordination with the Board. Even if the Board does not want to play ball with you---and engage in a problem solving exercise---you need to show the attempts to solve the problem and the desire to have--say an engineer look at the situation. It would be interesting to put a neutral third party in the downstairs unit and have another neutral third party in your unit and see if sound travel can be replicated, and see what kinds of activities would constitute "disturbing" behavior. If "normal" living---i.e. walking on the floor, opening a closet, etc., cause noise in the unit below then there is a problem with the building that the condo needs to fix. You and your tenants have a right to use the unit in a "normal" fashion.

      All that being said, please do retain a lawyer to help you with this. One experienced in Condo Law will be important to have. This will indeed cost you a fair amount in legal fees but you are on the verge of being taken to Court and those costs will be substantial, you will be required to pay them, and at the end you will still not have solved the "noise" problem that the downstairs owner is complaining about.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  3. Hi Michael -- What would you say counts as "unreasonable" noise? I have no issues with typical apartment noise, like footsteps overhead and the occasional voices. But my next door neighbour has a subwoofer that makes like a bar in the middle of a thunderstorm. I have a great landlord who has told the neighbour to turn the subwoofer down, and it was quiet for 2 weeks but now the neighbor is playing it again. How many complaints do you think is reasonable before I ask the landlord to consider serving an N5?

    ReplyDelete
    Replies
    1. Hi: "Unreasonable noise"---you know it when you hear it. I appreciate that isn't much help but frankly it is difficult to describe in words what constitutes "unreasonable" noise. Gathering evidence to prove that the noise was unreasonable is also difficult. Perhaps record the noise, measure decibel level, get by-law to issue a noise violation ticket. In Condo's often enough the rules impose a requirement that noise not be allowed to emanate from the unit itself. Perhaps get the neighbours or other persons in the building to witness the noise and ensure that they are prepared to testify to the noise and the impact of that noise on you.

      It is reasonable to expect your landlord to serve an N5 now. Frankly, there is no need to warn tenants that continued misbehavior will result in an N5 being issued. Therefore, given the warning already given, it is reasonable to serve the N5 now. It will be voidable by the tenant so he gets another chance regardless. The key for you will be to collect evidence of the noise--dates, times, and a manner of proving or demonstrating the extent of the noise. From how far away can the noise be heard---measure it out. Get neighbours to confirm it, etc..

      The reason for my focus on evidence of the noise is that if it is necessary to evict the tenant the Landlord and Tenant Board will require evidence from the landlord that the noise constituted a substantial interference with reasonable enjoyment. Simply say "it was loud" is unlikely to be sufficient to evict a tenant who is resisting the eviction proceeding. Hence, it is important to get the dates and times of the noise and evidence of the extent of the noise that the landlord will reference in the N5 Notice of Termination. Without that back up the N5 is essentially useless as the content of it will not be provable and an application based on it will be dismissed.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  4. Hello Michael, I have been reading your blog and found it to be quite informative. Keep up the great work.

    I do have a question about noise and it is a bit of a conundrum. I have recently moved into an apartment in an older building that has been renovated (not at all recently) making two bedroom apartments into bachelors. However the planning wasn't the greatest and my bathroom shares a paper thin wall with a bedroom in a neighboring unit.

    I work nights in a restaurant and usually do not get home until around three in the morning. The issue I am running into is that when I run a shower when I get home from work, it disturbs the person on the other side of the wall. This neighbor has complained to the landlord and they want me to not shower at night and expect me to do it upon waking up.

    While I sympathize with my neighbor, I also don't want to have to sleep covered in food from work.

    I understand that it puts the landlord in a difficult position, but I want to bathe. Can I be restricted from using my facilities at specific times? Can I get evicted using my shower?

    ReplyDelete
    Replies
    1. Hi:

      I think your intended use and time of use is entirely reasonable. You should be able to use your shower etc., at any time of the day. Your explanation makes it all the more reasonable. I spent about 15 years of my life working in a very busy kitchen so I know exactly what you are talking about when saying you need to shower. Going to bed, unshowered, is just not acceptable.

      If the landlord tried to evict you I don't believe he would be successful. I say "don't believe" because odd things happen in law and a lot can turn on your representation or how well you speak for yourself.

      Perhaps you can ask the neighbor tenant to jointly ask the landlord to insulate the wall between the units. Surely the neighbor can't be too pleased that there is no "sound privacy" between your units. Noise that goes one way also goes the other. If the neighbor won't cooperate with you, then consider making your own complaint to the landlord and then bringing your own application to the Board against the landlord seeking an order requiring him to fix the problem (start with a T2 application).

      Michael K. E. Thiele

      Delete
  5. Hi Michael,

    I am hoping you can help!

    I live in my fiances mothers house. She has two basement apartments and rents out one room upstairs (total of 3 tenants). My fiances sister and boyfriend rent one of the basement apartments. They both work night shift and expect the whole house to shut down between the hours of 2pm - 10pm (when they sleep). 5 other people live in the house and work normal schedules. The sister and her bf have complained about 1. mowing the lawn 2. vacuuming 3. shoveling the driveway and 4. our dog who occasionally barks if someone comes to the door. **On a side note - without our knowledge (mine or my fiance) they went out and purchased a muzzle for our small dog which they admitted to using without our permission when we are not home. Which is a whole other issue** We have tried to explain to them that the above 4 things are not unreasonable noises and that we are not altering our behaviour to accommodate their (minority) backwards schedules'. They have also complained about people laughing and watching tv two floors above them!! His sister claims to have called the police and said there is a 24/7 noise complaint policy and that they are in the right. That it doesn't matter what time of day it is, they are entitled to peace - to them, I guess it means absolute silence.

    I'm curious, what can we do regarding an EXTREMELY SENSITIVE tenant? Would you consider any of those things from the list a legit complaint? We're going into world war III about this! Thank you!

    ReplyDelete
    Replies
    1. Hi:

      Speaking in broad terms, based on the facts you describe, you are likely in the "right". There is no right to absolute quiet or silence in a residential complex. People are allowed to live normally and the sounds of normal living will not constitute a substantial interference with reasonable enjoyment of the property The Residential Tenancies Act provides at section 64 that the complained of conduct must "substantially interfere with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant". Whether a behavior breaches fits within this section is considered from an objective perspective---i.e. not whether a hyper sensitive tenant is bothered but whether a "reasonable person" would be bothered.

      Regular living noises, during daylight hours, are not a legitimate basis for complaint even if they can be heard in other units in the building. Hence, normal laughing, talking, watching t.v., vacuuming, shoveling the driveway and an "occasional bark, are things that people simply need to put up with as a natural part of living in rental accommodation. The key of course is "normal". Excessively doing any of these things could indeed be the basis of complaint. And certainly, common decency would suggest that people try to accommodate others in the building if possible. It all has a limit though and from how you describe it, it seems to me that the sister and he boyfriend are simply off side.

      Noise by-laws are indeed 24/7 in most Cities and the sister is correct about that. However, noise by-laws don't require silence or the level of quiet that she may think. Take a look at your City's noise by-law and you will see that perfect silence is not the objective. For things like lawn-mowing (or operation of gardening machines) you will see that the start time is often set for no earlier than 9:00 a.m.. After that, it's part of life and you just have to put up with it or move to somewhere more isolated.

      Hope that helps. With this kind of "war" consider being represented to let the lawyer or paralegal be the "bad guy" if only to keep peace in the family.

      Good luck.

      Michael K. E. Thiele

      Delete
  6. Hello Michael,

    I follow up with your blog and website. They are very useful. Thank you for taking the time to write the articles.

    I hope you can help and I want to hear your professional opinion on my situation.

    We live in a semi-detached house. The divided wall is not a concrete wall. The problem started when my neighbour moved out over a year ago and rented all 4 rooms in his house to students. One of them is the trouble maker. She has guests over, has late night parties and plays loud music. We followed your recommendation and called Ottawa By-Laws a few times and kept the records. The thing with ByLaws is that they take about 1h or more to arrive, and by the time they arrive the music is turned off. There was 1 time, we called at 3am because of the loud music again. Ottawa By Law sent 2 police officers. They arrived and told the students to turn the music down.

    Since then, the students has changed the strategy. They still play music but not loud enough for the officer to write a ticket (less than 50Db). At night, they keep the music on a level so that you can’t hear it from outside the house but from inside you still can hear it. They also play it on for a while, then off, then on again. It’s very annoying especially at 2, 3am. We afraid to cal By Law because they will hear nothing from outside when they arrive. We complained to the owner every time . He showed sympathy but we don’t think he does enough to stop this. We know that the owner does not live here and this is his only house that he owns.

    My questions are:

    - What is the best strategy to deal with noise from neighbour’s tenants ? We don’t want to talk to the students directly because they seems very irresponsible and don’t care much of anything. As mentioned above, talking to the home owner gets some sympathy but he doesn’t do enough to stop this.
    - Is there any law that could stop home owners turn his/her home into rental apartments?
    - We appreciate you taking your time to help people battling noise from neighbours. I understand that your time is valuable. If we come in and work with you on this case on billable time, what result can we expect ?

    Thank you.

    ReplyDelete
    Replies
    1. Hi:

      This is an unfortunate situation for you. The Residential Tenancies Act (RTA) does not assist you as a non-tenant of your neighbor. The RTA would give you leverage if you were a tenant of your neighbor as well and his other tenants were doing this to you. However, there is no direct course of action against your neighbor or his tenants by you, under the RTA.

      Given what you have tried, and there being no success, I would consider suing the neighbor in nuisance in the small claims court. The neighbor is allowing his property to be used in such a way that noise is escaping from the property and bothering you. If you consider proceeding in this way I expect that you would grab his attention to the problem. You may wish to explore hiring a company to insulate the walls properly and making that a joint expense with the neighbor.

      All that being said, You would be best to plan this approach and not just rush off an issue a claim. If you wished to work with me I charge on a hourly basis. I won't guarantee a result (as it is foolish to guarantee anything in law). However, I would expect that proceeding against your neighbor would certainly get his attention and perhaps he would agree to solving the "noise" problem from a construction perspective as well as taking steps to evict his tenants.

      Let me know if I can help.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  7. thanks for clarifying my options. this blog was very helpful

    ReplyDelete
  8. Hello Michael,

    I don't live in Ottawa but near Windsor. I live in an upper apartment and my neighbors live underneath of me. Normally I don't mind a little noise here and there but the other tenants let their kids litterally run around the house all day (6am-11pm) every day. That isn't my main issue though, recently a new landlord has bought the house and has already within 1-2 months illegally entered my apartment without proper notice. The landlord is also friends with the other tenants and had sent their daughter to pick up rent one day and she let the other tenant harass us in front of her without trying to solve the situation. The other tenants have also been pissing on my ebike while also kicking it to set off the alarm. The problem being that I had no video evidence of this so I haven't been able to do anything, I also don't have the landlords names or address. The landlord lives in missasuaga and I am not able to call long distance. I'm hoping that the new camera I bought will help but I have a friend whos sister is friends with the other tenants so i've been able to know what they've been planning and they continue to want to make plans to harass me even though I do not do anything to them.

    ReplyDelete
    Replies
    1. Hi: It appears from your comment that you know that the things being done to you are not allowable. Collecting proof of the things that are happening is important as well and especially important if you are dealing with a landlord who is friends with the tenants who are harassing you.

      With respect to the issue of not having an address for service or the name of the landlord be aware that in accordance with section 12 of the Residential Tenancies Act that your obligation to pay rent is suspended (not waived), until the landlord provides the legal name and address of the landlord to be used for giving notices and other documents under the RTA.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
    2. Could this also include them giving me sn improper rent reciept? It doesn't have their name or address let along my full name or even my roommates first name

      Delete
    3. Hi: The minimum requirements for the content of a receipt are set out in Regulation 516/06 Residential Tenancies Act. That section provides as follows:

      9. A document constitutes a receipt for the purposes of section 109 of the Act if it includes, at a minimum,
      (a) the address of the rental unit to which the receipt applies;
      (b) the name of the tenants to whom the receipt applies;
      (c) the amount and date for each payment received for any rent, rent deposit, arrears of rent, or any other amount paid to the landlord and shall specify what the payment was for;
      (d) the name of the landlord of the rental unit; and
      (e) the signature of the landlord or the landlord’s authorized agent. O. Reg. 516/06, s. 9

      The failure to provide a proper receipt does not suspend the obligation to pay rent. If the landlord does not provide a proper receipt the tenant can file an application to the Board.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  9. Hi Michael,

    We came across your blog while looking into the legality of residential noise complaints, here in Ottawa. We've been experiencing a particularly stressful time ever since new neighbours moved into the rental townhouse beside us back in August (2015). We've never had noise complaints the whole time we've rented in Ottawa. Then these particular neighbours move in and the noise complaints begin. For a few reasons we even rehomed our dog of 9 years, but being in constant worry that we'd be forced to give our dog up we decided to compromise and remedy the noise situation by finding him a new home, which took place on September 27. Also, we are expecting our third child due in April 2016, so being worried about neighbours trying to get us evicted or banging on the wall is stressful. We are not unreasonable people, but we're feeling like we are being stopped from living our lives and it's infringing on our happiness as a family. Our children, we admit, can be loud, but it's not constant or all night and we step in and problem solve with them. Any information or advice would be greatly appreciated.

    The following is a brief timeline:
    -complaint against dog barking, prior to but approx August 15

    -knocked on wall at 11 am, Sept 25
    -knocked on wall at 1 pm, Sept 25, when 2 year old was crying for less than 2 minutes

    -received phone call on Oct 8 from our landlord (property management company) looking for our version of noise issue as complained by neighbour
    -we informed her our dog no longer lives here, which she seemed surprised
    -acknowledged our kids make noises, but indicated we intervene immediately
    -kids are in bed between 7:30 and 8:00 nightly

    Oct 9- might have been shushed with a single thump on the wall, approx 3pm

    Oct 10- rearranged furniture in living room in an attempt to pull most family activities into centre of the living room and away from shared walls

    Oct 21- pounded on the wall when our 2 year old child laughed, laugh was excited and a bit high pitched 7:30am, -we're now feeling harassed, threatened and/or targeted, even discriminated against because we have 2 kids, ages 3 and 2. We are unclear as to what their motivation might be, we've never spoken to them despite trying to say hi in passing which was ignored

    Oct 28- saw rental property security car parked by community mailbox, there were a few loud moments in the day, but kids were quiet and settled for bed between 7:30 and 8:00pm, we're unsure if they called security about us, but we wouldn't be surprised

    We're now feeling like we can't even move in our own place. We're getting paranoid that we'll receive an eviction notice from the landlord if we let our kids laugh or cry or play for more than a couple seconds. Our previous neighbours never complained and the neighbours on our other side haven't complained either.

    If the complaining neighbours think we can't hear them they are mistaken. We can hear them going up and down the stairs, even using the downstairs washroom which is on a shared wall from the actual "using" the facility, to flushing the toilet to running water washing hands. Also we can hear their washing machine running. Two weeks after they moved in we heard the guy living there yelling into a phone and swearing at about 10pm, but we didn't care even though it went on for nearly 10 minutes.

    Thank you for your time and consideration.

    Sincerely,
    M & G in Ottawa

    ReplyDelete
  10. I have been a tenant in the same apartment for 19 years .Just over a year ago a new Landlord bought our building . I had my fare share of noise in this place. The tenant below me keep slamming the door & its right below my living room .I suffer from Anxiety Attacks & High Blood pressure. I have asked them twice nicely please not to slam the door & they still do it . I am at my wits end I told my Landlord awhile back & he didn't do anything . Can you please help me

    ReplyDelete
  11. interesting thoughts thanks for sharing

    ReplyDelete
  12. Hi Michael,

    Thank you for taking the time to write your blog and educate the public on the many issues of tenancy in Ontario.

    My situation involves a tenant below me who talks constantly all night with his wife (I honestly think he likes the sound of his own voice.) The problem is, their living room is below my bedroom, and their voices carry through the vents and keeps me up until the wee hours of the morning.

    After complaining to my landlord he told the male tenant that when his wife moved in (they were separated for at least a year and she was not there when he moved in) that they were to take the chatting into another room so it would not bother me. It got so bad I was lucky to get 2 or 3 good night's sleep if when were out late during the week. I had complained that when she started staying over late they kept me up not only with their constant chatter but with the noise they made banging whatever they bang down there and slamming doors.

    The tenants ignored the landlords requests. Finally I told my landlord I was going to file a complaint as I could not get to sleep, let alone stay asleep with their noise and their continued ignoring of his requests to take the noise to a different room. They argued that because they lived a different lifestyle (staying up till past 3 in the morning - he doesn't work) it was their right to chat and make noise.

    My landlord finally got a backbone and let them have it. All was good for 6 months. But the noise has started again on a consistent basis and I sent my landlord a text last night letting him know this. I can't even go to bed early because they have the right to not make noise up to 11 pm. I bought a noise machine to try to drown out the chatter...but their voices go over it. I taped up and padded over the vent, but this only muffles the sound a bit.

    Do I have a right to complain? I love my apartment. It's the inconsiderate neighbours causing me to lose sleep.

    Thank you so much. I look forward to reading your response.

    Catherine

    ReplyDelete
    Replies
    1. Hi Catherine:

      You absolutely have the right to complain and the landlord is required to take steps to deal with your complaint. The ultimate question will be whether the downstairs neighbours' conduct constitutes substantial interference with the reasonable enjoyment of the premises by another tenant (i.e. you). You can see what the argument is likely to be. The downstairs neighbours may acknowledge that you have the right to reasonable quiet in your apartment. They may acknowledge that their talking/chatting is bothering you. However, at the same time they may take the position that their chatting and talking is reasonable and that their behaviour in their own unit is consistent with the ordinary and reasonable use of a rented unit. In essence, their argument becomes that their talking in their unit becomes part of the ordinary noises of this apartment complex because of the way the premises are built. If they take this position they will indeed have a valid point.

      Shouting, screaming, yelling, hollering, all of these things may indeed be the basis for termination of a tenancy. Chatting or speaking normally in one's own apartment is not ordinarily a basis for termination. The problem here, it seems, is that there is insufficient noise separation between the two rental units. Having a direct vent between your unit and the basement unit is a problem of construction. Perhaps the place was built with the idea that there would not be separate rental units in the place?

      Unfortunately, as your landlord takes steps against these neighbours the neighbours may fight back and tell your landlord to get lost. In an application to the Landlord and Tenant Board to evict them the downstairs neighbours may indeed win. They could, in fact, complain about the landlord and his threats against them for "normal"behaviour and they could seek an order requiring the landlord to make renovations/repairs to the separation between the units on the basis that they have no privacy in their unit because you can over-hear their personal conversations. You may of course bring a similar application against the landlord for the interference with your quiet enjoyment of the unit and presumably sound travels two ways between the units.

      You may find that your landlord becomes a whole lot less sympathetic and supportive if applications are brought against him to fix the place and for rent abatements by you and the downstairs tenant. If your respective units are as insulated and separated as they can reasonably be (without inordinately expensive renovations) then this situation is going to be something that you will just have to put up with as the normal noises of the building.

      Hope that helps

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  13. Hi Michael,

    You seem very well informed and knowledgeable. I'm hoping you'll take a few minutes to read and comment on my situation. The situation is rather complicated, so I've just posed several of my most pressing questions. The home in question is located in Toronto and is a single family home occupied by tenants with a basement apartment occupied by the landlord.

    Would the landlord (living on the premises) be liable for making excessive noise, if said noise is a white noise machine that is being used to drown out noise from the tenants children?

    If the lease stipulates shared use of a laundry room at mutually agreeable times, and an agreement was verbally put in place at the beginning of tenancy to allow the landlord use every other Sunday, would the tenant be at fault for locking the landlord out of the room? Would it be within the landlord's right to change the offending lock (on the doorknob) without notice, while keeping the deadbolt the same?

    Is the landlord required to give notice before entering the laundry room if it has a separate entrance and does not require going through the tenant's separate living space?

    Thank you for running such an informative and useful blog!!

    ReplyDelete
  14. Hi. This article is very helpful - thanks, Michael. My question relates to the mental status of the offending noisy neighbour. Are the landlord's legal requirements different if the noisy neighbour is mentally compromised, perhaps even incompetent?

    ReplyDelete
    Replies
    1. Hi: You ask an interesting and difficult question. The answer in a broad sense is "yes" with lots of caveats and conditions. To broadly discuss the issue I would put it like this. The Residential Tenancies Act (RTA), imposes obligations on all tenants not to substantially interfere with the reasonable enjoyment of the premises by other tenants or the landlord. This requirement is imposed on all tenants. The landlord has a duty under the RTA to deal with tenants who breach this requirement as the landlord must deliver to the other tenants their right to quiet enjoyment. If there is a tenant making noise and this impairs the ability of the other tenants to have quiet enjoyment then the landlord must take action by either speaking with the tenants or ultimately even serving a Notice of Termination for substantially interfering with the reasonable enjoyment of the premises. For noise this is normally done by serving a Notice of Termination in Form N5.

      The foregoing is a general rule that is applied everyone equally. Hence it seems fair.

      However, what the Courts have determined is that applying the RTA requirement of not substantially interfering with the reasonable enjoyment of other tenants to ALL tenants can in effect be discriminatory against tenants who are suffering from a disability that causes the behavior that amounts to a breach of the obligation to not substantially interfere with the reasonable enjoyment of the property by other tenants.

      Where a tenant can establish that the behavior complained about arises from a disability then there may be an obligation to work with that tenant to find solutions to the problematic behavior that allows the tenant's tenancy to continue. What this means is that the requirements of the RTA (Form N5) are not applied as strictly to a person with a disability where the disability is the reason for the complained of behavior.

      This concept is best understood in the context of specific facts of cases. If you wanted to read what this means take a look at a case called Walmer Developments v. Wolch [2003] which you can find on www.canlii.org (for free).

      The duty to accommodate a person with a disability does not translate into a licence for that person to continue disturbing people. Accommodating a disability does not mean simply putting up with the actions/disturbances arising from the disability. What the landlord and tenant need to figure out is how to solve the problem/issue that is disturbing other tenants. The other tenants in the building may also be required to assist or at least accept the plan that is set out to deal with the problem.

      Delete

    2. In coming up with a solution to the problem a landlord is required to take all steps up to the point of undue hardship. This means that a landlord may be required to monitor a situation, do renovations, spend money, move the unit, etc. etc. etc.. The scope of the accommodation is not constrained other than by this concept of undue hardship. Clearly, a large and wealthy corporate landlord may be in a position to do more for a tenant than a small mom & pop landlord with limited resources.

      Through the accommodation process the landlord and the tenant find a solution that stops or severely curtails the behavior that substantially interferes with the reasonable enjoyment of the premises by other tenants. That results in a Board order or mediate settlement.

      If after all of these efforts, the problems continue and there seems to be no solution, then the Landlord and Tenant Board may indeed evict the tenant even though the offending behavior arises from a disability.

      Hope that gives you a sense of what your landlord is facing. It perhaps sounds more complicated than it actually is. I would say that the process is necessarily more collaborative and both landlord and tenant must cooperate. Obviously, if the tenant does not cooperate then there is nothing that the landlord can do to accommodate and the tenancy will be terminated if the tenant does not want to work towards a solution.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  15. Hi Micheal,

    My issue isn't with the tenants upstairs being noisy per say, but since the day I moved in they have made false allegations towards myself and boyfriend. Complained to my landlord on multiple occasions, different things. I am no longer allowed to make any kind of food or warm anything up after midnight (my boyfriend works until 2am and warms up dinner), I am not allowed to have any one in my apartment EVER as she complains. She has threatened, acted hostile, made discriminatory comments on my age and colour, and amitted verbally that's why she's trying to get us kicked out. There was a physical altercation where this 40 year old woman had tried to physically attack me, a 20 year old girl. I complained to my landlord and the hostile and harnessing text messages multiple times, and now the woman upstairs has tried to physically assault me. My landlord is doing nothing except telling ME to leave and I'm not allowed to leave before 60 days, I am scared for my safety and scared to go out of my house alone.

    What are my rights and how would I apeal this to landlord tenant act as my landlord is protecting me and just keeps telling me to move out.

    I have all messages from landlord and upstairs tenant

    Thank you.

    ReplyDelete
    Replies
    1. Hi Brittany:

      It would be a truly wonderful thing if you could find representation for an application before the Landlord and Tenant Board. You might want to try contacting a local community legal aid clinic and see if they are prepared to help you. If you show up very organized with copies of all of the texts printed out and a clearly written chronology of what has been happening then you might convince the clinic to take on your matter (it is a competition for limited legal resources).

      If not, I'll presume that you don't have the funds to retain a lawyer or paralegal (I'd expect the expense to total around $1000).

      You have a number of potential ways of proceeding here. The quickest route will be the Ontario Landlord and Tenant Board. A second way of proceeding, if the evidence is clear that you are being discriminated against on the basis of race and age (age and colour), is to file an application to the Ontario Human Rights Tribunal against the landlord and the tenant. The advantage of the Tribunal is that financial compensation will be more significant there than at the Landlord and Tenant Board. The advantage of the Landlord and Tenant Board is that it is quicker and an application there is more likely to result in the Landlord taking action against the upstairs neighbor--quicker. Certainly, a human rights complaint against the landlord will also result in the landlord taking action against the upstairs neighbor--though it may happen more slowly.

      The first thing to do is document the harassment and the things that are being said to you in reply. You must then write a very clear letter to the landlord setting out what is happening and how you are being discriminated against by the upstairs neighbor. You may confirm in this letter that you have told the landlord about the problems and that he has responded by telling you to move out.

      In this same letter, advise the landlord that you require him to deal with this issue and that if the tenant does not stop harassing you, and stop doing the following things--i.e. make a list, then you are going to file an application to the Ontario Landlord and Tenant Board against the landlord for failing to take action respecting the harassment and denying you quiet enjoyment of your rental unit. You need to clearly document the issues and make sure that you can prove delivery of the written complaint to the landlord. This is so that you can clearly show that the landlord has knowledge of the problems and that the landlord has chosen to do nothing.

      If you get no action as a result of the letter, then you may consider proceeding with a tenant's rights application. That is done in Form T2 available on the Landlord and Tenant Board website. The form is fairly self explanatory. The key to this application will be proving the harassment from the upstairs neighbor and communicating that harassment to the landlord. Hence, the text messages are important, any recordings (video/audio), letters, witness statements, and your own evidence at the hearing will be fundamental in convincing the adjudicator that the things that you say are happening are actually happening. You need a solid lock on the evidence proving the harassment. Without that, you risk being very disappointed by the outcome of the hearing.

      Delete

    2. If your evidence is solid and you can prove telling the landlord about the harassment and the landlord does nothing, then you can focus on the remedies that you are seeking. You will want to ask for a rent abatement, an order requiring the landlord to take action, a fine for the landlord, and whatever else strikes you as reasonable in the form T2.

      Aside from the foregoing, the threat of physical assault is quite worrying. I take it that you have not contacted police? Is this because it would be hard to prove? Even so, I recommend that you call police and make a report about what is happening and see if you can get an officer to knock on the door and speak with the upstairs tenant. This may scare her enough to stop behaving so ignorantly. If not, at least there is a report on file that responding police officers will see if they are called to your building for any future incident.

      The Human Rights Tribunal angle is an interesting one, but I only mention it as an option but won't go into the details of how that works. If you want to go that way, consider going to a legal clinic and see if they will take you on.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  16. Hi Michael,

    We rent the end unit of row houses and our neighbour owns her unit but not ours.

    My husband is a musician and practices in the basement before gigs, but never plays music past 930pm.

    The problem is, our neighbour is always complaining whenever he's playing music. She calls, comes over, and bangs on the walls. We're not breaking any bylaws but she doesn't want to hear any noise at all.

    Can she have us evicted even though we rent and she owns her own unit? And is there anything we can do to get her to stop and to understand we have lives too?

    Thanks!

    ReplyDelete
    Replies
    1. Hi: In order for the Residential Tenancies Act to apply, as between you and your neighbor, the neighbor needs to be your landlord or a tenant of your landlord. The relationship you describe does not invoke the Residential Tenancies Act and hence she has no power to evict you. Further, it is highly unlikely that your landlord could evict you if the neighbor complains to him about your behavior.

      In order for your landlord to serve you with a valid Notice of Termination for substantial interference with the reasonable enjoyment of the premises (FORM N5), the complained about behavior has to have affected the landlord or another of his tenants. As the next door neighbor is neither your landlord nor a tenant of his the RTA has no applicability.

      That being said, never underestimate the ingenuity of a motivated lawyer to stretch the sections of a statute to fit the complaint and a sympathetic adjudicator to entertain the application. Though I haven't seen it work, and I don't think it should work, a landlord could try to assert: 1) that your noise is an illegal act committed on the premises and hence he can evict on that basis, that 2) your noise interferes with a lawful right interest or privilege of his--which is to not have a nuisance emanate from his property. While these are possible arguments/applications, I think that there are strong arguments against them, especially on these facts.

      If your neighbor wants to assert that you are somehow disturbing her in a way that isn't legal she should have the same recourse against you that every other neighbor has against a neighbor who owns their property. It is a complaint to by-law or police and the issuance of tickets. If that is unsatisfactory she can sue and seek compensation. In these processes there is an independent determination by a third party whether the complained of noise (music) is indeed unreasonable and beyond what must be tolerated.

      You have the same rights of course to make complaints against her. If she doesn't physically stop coming over then you can serve her with a Notice of Trespass under the Trespass to Property Act and in theory at least, if that doesn't stop her the matter can be escalated to the police for charges to be laid.

      Hope that helps

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  17. Michael

    I would like to thank you in advance for the advice and service you give on this blog, it is very informative.

    I have a question with regards to audio recordings which I see is referenced on this blog many times. I will give a very brief background so that you understand the situation.

    My girlfriend and I have been living in a rental building in Toronto for several years with no incidents. New neighbours moved in next door roughly 9 months ago.
    They lodged a complaint with the landlord and we received the standard threatening letter.
    They listed 4 times that they felt we were making to much noise including other accusations and fabrications without going into detail. They also indicated that there was an audio recording of the last incident, which clearly was verbal.

    After doing some research with respect to audio recordings we did find that it is in fact illegal to record a conversation without being part of the conversation:

    "The Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code] imposes a general prohibition on interception (recording) of private communications, but then provides an exception where one of the parties to the private communication consents to the interception of that communication. Thus, broadly speaking, Canadians can legally record their own conversations with other people, but not other peoples' conversations that they are not involved in"

    According to this clause our neighbour broke the law which is an indictable offence.

    The reason we are going to such an extreme is we feel violated by a tenant that does not understand normal human behaviour. We are not 100% innocent, nobody is. We don't like the way it was handled.

    Now my question:

    Can or does The Landlord Tenant Act trump federal law in this type of dispute?

    We are thinking of going into a police station to discuss any and all options against the tenant since he is the one that we believe committed this possible crime, not the landlord.

    Your thoughts on this would be highly appreciated.

    Once again thank you.

    IA

    ReplyDelete
    Replies
    1. Hi: An interesting question that touches on an area of law (criminal) that is not a focus of my practice. My comment, though, is that your neighbours likely did nothing illegal or contrary to the criminal code. My understanding is that it is illegal to "intercept" a private conversation. The interception relates to listening in on a phone call, entering into a private space and recording it, or recording a conversation in circumstances where the persons having the conversation would have an expectation of privacy. I'm sure there is some caselaw on the point (which you could research on www.canlii.org for free. Finding the caselaw is easy enough if you look up the criminal code section and then hover over the section number, the website will then link you to court decisions that considered the section. The court decisions are great as they flesh out the meaning of the section).

      In my view, recording a conversation or noise that people make when that noise leaves the area in which the noise-makers have an expectation of privacy and intrudes on the space occupied by someone else is not illegal. It is, in my view, a permissible gathering of evidence. In fact, people record the noise of conversations, yelling, shouting, all the time and it is presented as evidence all the time. Of course, just because it is done does not mean that it is legal---but I suspect that it is.

      How to deal with the issue that you are raising is easy enough when you look at extreme examples. More interesting is how the law is applied if you are in a private space, having a conversation at a normal level that should or would normally result in the privacy of that conversation being maintained but for some unexpected reason the acoustics are such that your voices carry and that is recorded. What if the person recording the conversation knows of the peculiarity of the acoustics and takes advantage of them to record conversations that he knows are intended to be private? Frankly, I don't know exactly how this would play out in Court. I have a sense though that this is the kind of recording that you are talking about. Perhaps your conversation could be heard next door but common decency would dictate that the neighbor does not record the conversation.

      That being said, I doubt that it is a criminal offence--though I stand to be corrected. I do think however, that the circumstances of recordings like this could indeed be tortious and amount to an "intrusion upon seclusion" which is a relatively new tort in Ontario.

      Depending on the circumstances I could see behavior amounting to an intrusion upon seclusion as being grounds to serve a Notice of Termination on the person making the recording. It is not the first thing I think of when a tenant makes recordings, but I suppose the nature of the recordings, especially if they capture something that was clearly intended to be private and normally would have been private, could be a basis to terminate and evict someone.

      Good luck with this.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  18. Hi Michael,

    This is a great blog, with very helpful information Thank You!

    I have a question concerning a noise complaint in our commercial/residential building. We own a commercial building with 2 apartments above. We have recently had noise complaints from one of the residential unit tenants. The commercial tenants have taken steps to improve the noise and I have inspected the noise level myself and is completely manageable in my opinion (the outside road traffic makes significantly more noise then the commercial tenant). My question is, are there any restrictions to operating hours for a commercial unit that is below a residential unit? Any other advice as to where to find more information for a landlord with this type of multi-unit, multi use building?

    ReplyDelete
    Replies
    1. Hi: I have had some experience with commercial noise impacting residential tenants. I was surprised (shocked really) how complicated the issue of "commercially" generated noise can be. Noise generated in certain businesses is exempted, noise generated by certain equipment can be exempted from any laws of general application.

      That being said, the place to start is with the City/Town/Township as in most cases it is the noise by-law that will regulate noise. Then depending on the nature of the noise you might discover that other regulations/statutes (Provincial or Federal) may apply that over-ride the by-law.

      Start with the by-law and the person making the noise will surely assert "other" rights if they have any.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  19. I purchases my townhouse just over a year ago. My neighbour rents. Recently he moved out and left his teen daughter and her friends to occupy the rental.
    Last night as an example, there must of been about 8 to 10 Teens hanging out at the front door, yelling, screaming, carrying on. And causing quite the disturbance. I called bylaw at 11:30 pm with a noise complaint. At 12:30 am, bylaw called back asking if there was still a disturbance. Told them yes, and was told he would drop by. At 2:00 am, my husband called the police. Finally they arrived at 3 am with bylaw.
    Found out today that my neighbour also called the police last night.
    How do I deal with these drunken kids?
    Karyn

    ReplyDelete
    Replies
    1. Hi Karyn: Calling by-law and police is the right way to go about this. You can speak with the neighbour/landlord and see if he will do anything to help. With respect to the Residential Tenancies Act and any help within that statute and the Landlord and Tenant Board I'm afraid there is nothing for you there. The Landlord and Tenant Board has no jurisdiction to hear any complaint that you might have against your neighbour tenants. The Board only has jurisdiction in applications between landlords and tenants. It will also be very difficult for the landlord (presuming he is motivated) to do anything to help you using the Residential Tenancies Act. The RTA allows landlords to serve a Notice of Termination for the kinds of noise and disruption you describe if that noise/disruption substantially interferes with the reasonable enjoyment of the premises by another tenant (of the landlord) or the landlord. As a next door neighbour to the owner of the property who rents to tenants you are not a person that the RTA seeks to protect. Ultimately, your recourse is through by-law, police, and the Courts if it becomes intolerable.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  20. thank you for the post, very informative.
    I have a question,
    On the long weekend in May, i had a bbq for family and friends, it was in my backyard, and started at 2pm and ran till around 10 pm. there was no one yelling but we did have a couple of acoustic guitars. One neighbor two houses down complained to by-law, and when they showed up at 7 pm, said it wasn't noisey enough for concern and to make sure it was done by 11pm, which i assured him that it would be. the man was swearing at my friends and generally causing trouble. we don't have many parties but we do use our backyard a lot over the summer. the man decided to yell and swear and threaten me with harm.
    what can you do with a problem neighbor like that, or is he in the right and i have this all wrong?

    ReplyDelete
    Replies
    1. Hi Mark: I've heard it said often enough by real estate agents that a significant percentage of people who sell their homes are moving because of a problem with the neighbor(s). The reality is that dealing with an idiotic neighbor is always going to be a hassle, frustrating, and time consuming.

      Your question leaves me with a couple of questions that need answering before I can offer you a focused comment. Are you the owner of your house or are you a tenant? Is the neighbor, two houses away, an owner of that house or is he a tenant. If he is a tenant is he a tenant of your landlord as well or is his landlord a different landlord?

      The answer to these questions are important. As the context of this blog is Ontario Landlord and Tenant law let me make this assumption on the facts: 1) you are a tenant; 2) the neighbor 2 doors down is also a tenant of your landlord.

      If these two things are true you have more recourse than just a regular owner of the house. On the assumption these are true, your neighbour's behavior is contrary to the Residential Tenancies Act and you can insist that your landlord serve the neighbor with a Notice of Termination. The basis of the termination can be substantial interference with reasonable enjoyment (Form N5) or if the threats are serious you could ask him to serve a Notice of Termination for impaired safety and/or illegal act (Form N6 & Form N7). If you have the evidence of the neighbour's negative conduct you could insist that the Landlord and Tenant Board process be engaged and eviction sought. Whether or not your landlord would successfully evict the tenant depends on how the evidence goes and whether the Board Member decides the allegations are serious enough to warrant eviction. Even if the tenancy is not terminated, the Board I think would likely order the tenant to behave under threat of eviction if his behavior continues.

      While the foregoing reflects what the landlord can do--on your complaint. You should not stop there. A police complaint against the neighbor is also worthwhile in relation to the threat of harm. Be sure to record these incidents' if you can and follow up with police to see if the guy can be charged. Charges may result in conditions restraining the neighbor from speaking to you or anyone at your home and additional conditions may require him to stay a certain distance from you. There is also an option, if you have the inclination, to file your own complaint against the neighbor under section 810 of the Criminal Code--you can hire a criminal lawyer to prosecute the guy for you. On top of all of that, if the behavior continues and is over the top you can always sue the guy (this tends to be effective if the guy has assets and something to lose).

      If your neighbor is not a tenant of your landlord you have no leverage under the Residential Tenancies Act. This means you are limited to police complaints and hope for charges, section 810 prosecution, or civil action against him. The key, before adopting these processes, is to ensure that you have evidence of the offending behavior. Witnesses are great to have--but video is better. If you can't prove that this neighbor is making threats, yelling and swearing, then none of the processes described will be of use to you.

      Good luck

      Michael K. E. Thiele

      P.S.---given the options the real estate agents' refrain about people moving because of problematic neighbours begins to make sense--doesn't it?

      Delete
  21. I have been living in a basement apartment of a two-storey house for over 3 years with the landlord upstairs. The landlord was always quiet and I had no complaints. However, the landlord needed to move out to take care of their elderly parents. The new tenants upstairs have been walking around above my bedroom at odd hours of the night. My bedroom is situated where their living room would be. The floor creaks and it wakes me up at night so I am unable to sleep. Some nights it will be 1:30am or 2am, other times it will be 4am or 5am, but it is consistent throughout the night so that just as I am falling back to sleep it happens again. I have complained to the landlord but they said it was unreasonable to ask the new tenants to stop walking in the area of my bedroom during the night because the new tenants have only been there a week. I asked to have the floor fixed so it wouldn't creak and the landlord seemed reluctant to do anything about the floor. The answer was basically that I would hear noise from new tenants because the landlord was never home much before and so it was very quiet for me. My question is how long, or how many nights of interrupted sleep are sufficient before the landlord should do something about my noise complaint. Should I have to wait two or three weeks before the landlord talks to them? Is the noise of them walking around at night and waking me up sufficient for a noise complaint? What should I do if the landlord won't speak to the tenants about the noise at night? Should I approach the tenants myself?

    ReplyDelete
    Replies
    1. Hi: This is a potentially difficult situation. A tenant in a rental unit must expect a certain amount of noise and disturbance arising from what is a form of communal living. Hearing water running, toilets flushing, walking, talking, television sounds, and other sounds of "living" are to a degree something that must be accepted as part of apartment living. Finding the line of what constitutes a "substantial interference with reasonable enjoyment" and just normal sounds of living can be difficult. Note that the Residential Tenancies Act only addresses "substantial" interference and not just any interference.

      Walking on the floor, causing the floor to creak by walking on it, this is not going to be the basis for action against the new upstairs tenant. Your landlord is correct in saying that it would be unreasonable to ask the tenants to not walk in the area of their apartment above your bedroom. In fact, they have the right to walk there and even do the ordinary things of living at these times--i.e. television, radio, cook, etc.. At present you are not describing activities by the new tenants that would warrant any kind of notice to them.

      The question then is whether the rental unit is reasonably constructed. It might very well be that the new tenants are behaving normally/reasonably but that the impact of the normal behaviour is amplified to an unreasonable level in your unit. This can be the result of poor construction, lack of insulation, or lack of soundproofing. If the noise level is truly unreasonable--on an objective standard--then you can be asking the landlord to take steps to fix the problem. Perhaps that is screwing down the floor, insulating for noise, laying carpet with underlay, or other steps. However, this will only be the case if there is something exceptional about the sound transference from the upper unit to your unit. If it is "reasonable" or "normal" noise then you are going to be out of luck.

      There is no timing per se about making noise complaints. If you think the noise is too much make the formal complaint now, in writing, and see what the landlord does. This is likely to be an extended process. Lastly, in relation to the upstairs tenants, I don't see why you couldn't speak to them about the problem. Don't be accusatory or demanding, perhaps raise the problem from the perspective of trying to understand what is going on. Certainly, you can't reasonably expect them to not walk around in their unit and I wouldn't even ask for that. You could, perhaps ask, if they are always up at these hours and if this is something you should expect to continue. Perhaps talk about area rugs, are the floors hardwood or laminate? Your neighbours can be asked to be neighbourly but they are not required to change the way they live--if what they are doing is reasonable.

      good luck to you.

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

      Delete
  22. Hi Michael,

    Your responses have been incredibly helpful so far.

    I am living in Southern Ontario with my husband in a rented condominium townhouse. We are two doors away from neighbours who are very disturbing to everyone here.

    We moved in a few months ago and within the first week, we observed the neighbours (a large, extended family) fighting loudly with each other outside in the common area. We quickly realized it was very commonplace. They verbally fight at least 3 times/week mostly during the daytime, in front of their small children and the whole townhouse community. On several occasions, the fights escalated to physical violence where police were phoned (not by us--we were too afraid) and they had to use a taser to break it up. I have witnessed them screaming at another neighbour here which has made us very anxious about living here. We have deliberately stayed out of their way and even refrained from using the back, more convenient exit from our townhouse to avoid walking past them. I have collected audio recordings of their arguments as evidence.

    The units are separately owned here, so our landlord is not the neighbour's landlord. They are brand new landlords; we are their first tenants and therefore they've never experienced this prior. We have reason to believe that the bad neighbours are renters, not owners, but it is unconfirmed. We emailed our landlord and they responded quickly with concern. We spoke with them in person about our issues and they promised to contact the condominium management. So far we have not had any response as to the condo management's involvement and what steps can be taken. They stated when they purchased the townhouse, they were told the neighbours are great here.

    My husband and I would very much like to move out since it seems unlikely that the neighbours will ever leave or stop fighting. We do not enjoy being home at all and would like to pursue a new start elsewhere. However we are very worried about the financial penalties we could be forced to pay as a result of terminating the lease early.

    How can we get out of the lease early? The only relevant clause I could find was 'reasonable enjoyment' but it was quite vague. I would love to resolve this amicably with our landlord if possible.

    Thank you for your help.

    ReplyDelete
  23. We have a two year old that wakes up between 6:30-7:00 am, she plays quietly watches tv, does normal things which we don't find to be excessive. Our landlord keeps texting and calling us making us aware the apartment down stairs is complaining of noise in the morning (she has an infant that sleeps until 10 am) when is a reasonable time for my child to wake up is there law against that we are not being excessive they just hear every foot step, not voices or tv or music just regular things like getting breakfast and walking , he has served us a notice of complaints of noise already do not want to leave our apartment but getting fed up getting calls about noise when we have put down area rugs and try to be quiet.

    ReplyDelete
    Replies
    1. Hi: In my opinion your landlord is off base and your downstairs neighbours have an unreasonable expectation of quiet. I find 6:30-7:00 quite reasonable and in fact I don't have a problem with any time around the clock. Simply put, there are certain things that you have the right to do in your own home. Watching t.v. at a reasonable level, listening to the radio, talking to yourself, walking around, making tea, cooking something, answering the phone, talking on the phone, these are all normal activities of living and I don't think that it is within the power of neighbours to prevent you from doing the things of ordinary living. The answer can't possibly be that you are required to keep your two year old in bed until the neighbor is ready to get up.

      The legal threshold is whether you or an occupant of your unit is substantially interfering with the reasonable enjoyment of the premises by another tenant or the landlord. The question is objectively based and not on the subjective complaints of your actual neighbor---there is no doubt that your neighbor feels like the noise is substantially interfering with her reasonable enjoyment. Instead, the Board would ask whether an objective person would find that your behavior (or that of an occupant) is substantially interfering with the reasonable enjoyment.

      On top of that, the Board will recognize that certain sounds of living are something that tenants in apartment buildings must put up with. If the neighbor gets up for shiftwork at 3:00 and you can hear his kettle boil then that is something you have to put with. He is allowed to live and boiling a kettle is not unreasonable. The same goes with your daughter.

      Your downstairs neighbor does not have a right to absolute quiet. That isn't part of the bargain.

      Your landlord needs to be politely told that his repeated complaints to you are harassing and that he may face an application against him (from you). Further, the landlord should be told if regular and reasonable sounds of ordinary living are transferring so easily to other rental units then there is a problem with the construction of his building and he should be hiring experts--like sound engineers, to make recommendations to install noise barriers and insulation to stop the sound transfer. That expense belongs to the landlord if the units are properly built. Alternatively, the landlord could install wall to wall carpeting with a thick underpad in your unit if you are agreeable to that at his expense (maybe that's better than your area rugs).

      As the landlord is serving notices on you please make sure to collect evidence of what is going on in your unit. If you can take some photos or video with sound to capture what is being complained about that would be helpful to you in defending yourself if it comes to that.

      You might find that simply by pushing back that the landlord lays off as he must know that his demands are not reasonable. He is probably just reacting to the complaining of your neighbor and is hoping that you will just take it and comply so that his headache ends. Make sure to tell him that you have put down area rugs and that you have tried to be quiet and respectful of your neighbor but that the neighbour's demands are unreasonable.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  24. My husband and I rent a house which is being sold.

    I work 10 hours a day, my husband is an AZ driver and works nights (7:00 pm to 6:00 a.m. sometimes until 7:00 a.m.). We tried to accommodate showings throughout the day but the agent was scheduling appointments at all hours. My husband was losing a substantial amount of sleep. A tired driver is potentially a dangerous driver. One agent even showed up through the day when our landlord's agent told me the appointment had been cancelled. My husband was subsequently awakened.


    We requested that the showings take place from 7:00 p.m. to 9:00 p.m. weekdays and any time on the weekends. The agent agreed but started requesting appointments without 24 hours notice. When I asked for 24 hours notice she said we'd be served with an order to comply to allow showings between the hours of 8:00 a.m. and 8:00 p.m.

    I feel that we are complying to the best of our abilities.

    Can we be forced to allow showings during the day while my husband should be sleeping?

    Thanks,

    Sandy...

    ReplyDelete
    Replies
    1. Hi Sandy:

      It is really unfortunate that some people are so incredibly ignorant. It seems to me that your showing schedule is reasonable. Especially an "anytime" showing schedule on weekends.

      The Residential Tenancies Act section that applies is section 27(2). That section specifies that a landlord or authorized real estate agent may provide a notice to enter to show the house to a prospective potential purchaser. The notice that is to be provided and the contents of the notice is set out in section 27(3). The agent must give 24 hours notice, specify the reason for entry, the day of entry and a time of entry between 8 and 8. Note that a time of entry BETWEEN 8 and 8 must be specified. It is not appropriate for the agent to say sometime between 8 and 8. That would be an invalid notice.

      Based on the wording of the section it would appear that the agent could be a jerk and interfere with your husband's sleep patterns. That being said, the section would appear to also allow you to demand that the agent provide the name of every potential purchaser and prove to you that they are indeed potential purchasers---are they just window shopping, just nosy neighbours, are they looking for ideas of what is available in the market, can they actually afford the house. Are they really potential purchasers if they can't afford the place or they are just curious?

      My point is that you can make it difficult for the agent (I'm not suggesting that you do). You could leave the place a disaster, you could do things to dissuade any "potential" purchaser by perhaps highlighting the shortcomings of the property etc etc etc. (again things I am not suggesting that you do).

      Why do I mention these things---to highlight that notwithstanding the words of sections, there is a certain pattern of conduct and expectation of civility that runs through the law. You shouldn't put the agent to the task of proving that every person she wants to show the property to is actually a potential purchaser with the ability to actually purchase the house and she shouldn't force you to accommodate a showing when your husband has bona fide reasons to be sleeping and needing to sleep.

      Given the weekday hours you have offered and the wide open weekends I would have no problem refusing the agent/landlord entry during the hours that your husband is sleeping. In my view, if the landlord/agent was foolish enough to try to take this to the landlord and tenant board they would lose. I think an adjudicator would exercise discretion and common sense and find that the limitations on access are reasonable and that the agent should have accepted what you offered.

      Note that the idea of the language of the RTA being open to interpretation or flexibility in interpretation is already something that is done in accommodating persons with disabilities. That the access right to show a unit is limited or constrained not by the statute but by decency is something that I think the Board would adopt.

      Delete

    2. I don't see any real risk of eviction or anything like that from the facts as you describe them. Note that the agents statement that you will be served with an Order to allow showings is not something that is practically possible as that is not how the Landlord and Tenant Board works.

      If the agent continues to make like difficult for you, you might consider writing to the landlord (or have a lawyer do it for you) confirming that the agent is harassing you and as the agent for the landlord he is responsible for the agents behavior. You could threaten to take the landlord to the Board for harassment--based on the behavior of the agent. Further, you could initiate a complaint against the agent as well. Point being, you have some options here to go on the offensive if you're being harassed and it doesn't stop.

      If you need to escalate this I'd recommend to you that you get a lawyer or paralegal to write the letters for you as that is more likely to result in a quick resolution than you doing it on your own.


      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete

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.

Search This Blog

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.