Friday, 23 November 2018

Making Noise--what is the cut-off?

Noise by-laws and the consequences for making noise

A very common problem is with tenants making noise in apartment buildings.  The noise can be loud talking, arguments, stereos, blasting music, party noise, televisions too loud, gaming systems and the games on them making war noises, crying babies, barking dogs, walking like an elephant on the floor,  and all other kinds of noise arising from tenants and their guests living their lives.  What are the rules about dealing with noise?

There is a very large red-herring that always interrupts this analysis.  That red-herring (i.e. something that does not actually mean anything but seems like it might), is the noise by-law passed by a city, town, or township where the rental unit is located. 

Tenant's who make noise will, when confronted, will often say that they quiet down at 10 p.m. or 11:00 p.m. as the by-law requires.  The implication is that until the time set out in the by-law they can play the music as loud as they want or have as many people shouting and carrying on as they wish.  So long as they comply with the by-law they feel that what they are doing is legal.

Certainly, if a municipal by-law requires a quiet period after a certain hour or prohibits certain activities before a certain hour then the impression is that noise before or after the time in the by-law is legally permissible.  For the purposes of landlord and tenant law this is absolutely 100% false.

The Residential Tenancies Act controls noise and all behaviour of other tenants 24 hours a day, 365 days a year.  That control is set out in section 64 (among others) of the Residential Tenancies Act.  In that section tenants are prohibited from substantially interfering with the reasonable enjoyment of the premises by other tenants and the landlord.  Loud noise that at any time of the day substantially interferes with the reasonable enjoyment of the premises by any other tenant is prohibited.  This is the case regardless of what the noise by-law says.

The key to the RTA requirement lies in the words "substantial" and "reasonable".  There is no noise bylaw and no RTA requirement that imposes absolute quiet in any residential complex.  This does not mean that some tenants will not be disturbed.  For example--a blender at 1:00 a.m. being used to make a breakfast for a tenant on shift work might very well be quite annoying to a neighbour who can hear this blender.  Does this blender noise contravene a by-law or the RTA?  Very likely not.  While the noise is undoubtedly bothering neighbours, the use of the blender at that time and for that purpose is "objectively" reasonable.   The problem is not actually the use of the blender at that time, the problem is likely that the walls are too thin, not sound insulated, or the rental unit is very old or it wasn't originally constructed for multiple-family occupation.   This problem, then, becomes the reality of communal tenant living in that building.   I know of a great many buildings in this region (Ottawa), where neighbours are fully aware of the intimate habits and daily routines of their immediate neighbours.  They know these things not because they're snooping but simply because the noise carries and you can hear everything just walking down the hallway or while sitting on your living room couch.   Perhaps the more startling revelation is when tenants realize that if they can hear the neighbours then the neighbours can hear them too.

Back to the blender example.  If a neighbour decides to be anti-social and starts turning on a blender, or two blenders, at 1:00 a.m., and leaves it running for 20 minutes just to annoy the neighbours then this likely is a breach of the RTA.  If a complaint to the landlord results in an investigation that determines the noise is being made to bother people then eviction is on the table and the tenancy can be terminated through the N5 Termination Notice process.  So, intent matters!  If a neighbour is trying to be annoying and has no reasonable regard for the peace and quiet of the neighbours then they can be evicted for the noise.   The RTA, through the hearing process and eviction procedures will impose on tenants "reasonable" behaviour and to an extent respectful behaviour for neighbours.  However, the RTA will not prohibit all noise or seek to impose onerous conditions for the benefit of a tenant who is hyper-sensitive or who wants absolute peace and quiet.  This is even the case if the noise is "new" because of new tenants and the tenant complaining had perfect quiet for many years before.

Michael K. E. Thiele
www.ottawalawyers.com

3 comments:

  1. Hello Michael,

    I am a university student in Ontario as well as an apartment tenant. I am also a reader of your blogs and a fan of you. You are a great and respected lawyer. You articles are really helpful to make tenants better aware of their legal rights. Hope everything is well with you.


    Great to see your update of blogs today. I read one article about roommates you posted in 2013. I would like to ask you a few questions about it if you don't mind answering me under the comments of this article. For the topic of noise, I also have a story and will share my experience with you later. Here are my two questions.

    The first one is that is if the tenant has the right to request to the landlord for a sublease or assignment of the premises when the lease is on a month-to-month basis. Can the landlord reject the request with the reason that the lease is already beyond the 12-fixed term? Is this deemed as fair reason to reject the request? Actually the landlord just intends to let the tenant and the new potential occupant to sign a new lease at the higher market rent price.

    The second one is how to differentiate the identity between the roommate and the unauthorized occupant. If the tenant bring in a new roommate to the unit for a long stay on a monthly tenancy, can the landlord recognize this roommate as an unauthorized occupant and force evict both the tenant and roommates? Is it mandatory for the tenant to inform the landlord of bringing in a roommate? We presume that the new roommate has an agreement with the tenant and does not make any damages or problems in the unit.


    Looking forward to your reply soon.

    Best regards,

    Jason

    ReplyDelete
    Replies
    1. Hi Jason:

      Thanks for the kind words. Your questions are interesting ones!

      There is a concept that I think will be very helpful for people to understand. A fixed term lease runs for a fixed term (whatever the parties select--normally a year). When the fixed term ends the lease does not end. It does not end even though we talk about the lease as going "month to month". The sense that people get is that with each passing month the lease ends and a new lease starts--monthly. This is not in fact what happens. There is only one lease and one tenancy. It didn't end at the conclusion of the fixed term and it doesn't end monthly and start again. Conceptually, this is important to realize as the whole assignment and subletting concept makes no sense if the tenancy ends and renews monthly after a fixed term. Also, how do you conceptualize a "sublet", by its definition if there are expiring and new tenancies every month (short answer--it makes no sense). Hence, when you analyze the RTA and the subletting and assignment sections, remind yourself that there is only one tenancy with different terms or periods.

      So, that being said, a landlord's rejection to sublet based on an expired fixed term is nonsense. A landlord's refusal to allow an assignment (generally) is permissible because a refusal allows a tenant to simply terminate and escape the liability of the lease. A sublet is different because the concept of subletting allows the tenant to preserve the benefit of the lease (maybe a great location, good rent, etc.), but still come and go while getting a sub-letter to help with the expenses of the lease while the tenant is away. A landlord can't refuse the sublet just because the fixed term is expired.

      Your question about the unauthorized occupant is a great question. It's a great question because I see many landlords trying to take advantage of tenants who bring in roommates to share costs. Landlord's sometimes try to control who lives in units with lawful tenants. For the most part (99.9%) the landlord's restriction in this respect is unlawful.

      You differentiate between a roommate and an unauthorized occupant by asking a simple question. Has the tenant vacated the unit? If the tenant has vacated the unit then the occupant is likely (though not necessarily) an unauthorized occupant. If the tenant has not vacated the unit then the other person in the unit is a roommate. The legal logic of this flows from the definition of sublet in section 2(2) of the RTA. There is no unauthorized occupant if the tenant remains in possession of the rental unit.

      While many landlords really really hate it--there is absolutely no requirement to advise a landlord about a new roommate nor to inform the landlord of the new roommate. Now of course, in law absolutely no requirement means in 99% of cases. There are exceptions but off the top of my head I'd say they're rare. One exception that may be arguable is where the landlord is running a crime free housing program where tenants are required to pass a criminal background check. I can imagine that in such a building the tenant would not be permitted to subvert the program by bringing in roommates who would not pass the criminal background check.

      Otherwise, though, it is not the landlord's business who lives with a tenant, or who stays overnight, etc. etc.. There are a few Human Rights cases where tenants have been awarded substantial sums of money where landlords have interfered with the presence of guests/roommates.

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Hi Michael,

      Thank you for your great answer. Now I know the tenants should undertake their own responsibilities and risks for having a roommate not being put on leaseholder list. An interesting point I feel in this roommate case is the difficulty for the landlord to judge whether the tenant vacates or not. This is because it is hard to hundred percent define the vacation of tenant, when the tenant still keeps paying monthly rents and leaves some furniture in the unit. In such a case, event if this tenant will not stay in the unit very often, it is hard to recognize this as an change of occupancy. I think the major concerns from the landlord during a tenancy come from the non-payment or damage/noise/misbehavior issues, if these issues can be avoided by the tenants and roommates, such a roommate case will not be a big concern to both the landlords and tenants. Could you leave a comment on this?


      Thanks,

      Jason

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

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