Thursday, 23 January 2020

Tenant Making Noise--a guide for new residential landlords

What should you do when your tenant is disturbing other tenants?

For the purposes of this article let us assume that you (the landlord) have an apartment building with multiple rental units.  It doesn't matter if it is a duplex, triplex, or even an apartment building.  The issue of dealing with tenants making noise attracts the same level of responsibility for the landlord regardless of the size of the building.

Again, to contextualize this article, let us assume that you (the landlord) receive written complaints, email complaints, text complaints and oral complaints from one or more tenants about the behaviour of one of your other tenants in the building.  Let's make the complaint about stereo noise, smoking in the hallway, shouting on the balcony and in the common hallways.  The complaint (from one tenant) or complaints from multiple tenants all involve these issues.  A complaint, to be legitimate, does not have to be about more than one thing.  The complaint could be only about noise, only about smoking, or only about some other single issue.  Also, the complaint does not have to identify a repeating pattern.  A single one time event is enough to make the complaint legitimate and is enough to require a landlord to take action to comply with their obligations under the Residential Tenancies Act.

Why does a landlord have to care about the effect of noise or other anti-social behaviours on other tenants?  Why can't the landlord simply tell the complaining tenant to approach the neighbour to "work it out"?  The answer is because the law provides to the tenant the right to have quiet enjoyment of their rental unit (apartment).

"Quiet Enjoyment" means something slightly different than "silent" enjoyment.  "Quiet Enjoyment" is a legal concept that is implied as part of every lease agreement and it means that a tenant renting from the landlord is granted by the landlord reasonable enjoyment of the rental unit for all usual purposes.  You (the landlord), when renting a unit to a tenant are giving the tenant, as part of the lease, an assurance and condition of the lease that the tenant will be able to enjoy the rental unit in all normal and usual ways.  Further, if anything happens to take away from the "quiet enjoyment" (reasonable enjoyment), then the landlord is breaching its lease/contract with the tenant unless the landlord takes steps to restore the tenant's "quiet enjoyment" of the rental unit.

Hence, if a tenant complains about a neighbour/tenant who is making loud noise, shouting in the hallways, smoking in the premises, or any other kind of unreasonable behaviour that interferes with the tenant's quiet enjoyment it is, legally, the landlord's responsibility to take action to fix it.  If the landlord does nothing, and the tenant being bothered continues to complain, and still the landlord does nothing, then the complaining tenant can actually file an application against the landlord for failing to take steps to make sure the tenant has reasonable enjoyment/quiet enjoyment of their rental unit.  If the tenant is successful, the landlord can be ordered to pay a rent abatement to the tenant, reimburse costs associated with the interference, and also be ordered to do anything that the Landlord and Tenant Board considers necessary to give the complaining tenant reasonable enjoyment of their rental unit.

THE COMPLAINT

So let's assume that you (landlord) received a complaint this morning from one of your tenants outlining stereo noise, smoking, and shouting.  Let's say that the complaint comes in via email and that it is detailed in one sense and vague in another--perhaps it reads like this:

 Hi Larry Landlord:  I just wanted to send you an email to let you know about a huge party last night in the building the cops had to come.  I  would like this to stop.  Thanks  Terry Tenant



LANDLORD'S RESPONSE

You may read this email and be taken aback at the idea that police had to respond to your building and that clearly something happened that you need to get to the bottom of.  In some respects this is true.  Being told that the police had to respond could send you on a trip to the police station trying to find out what happened based on the email received.   Going to the police station might reveal the information you are looking for or it might be a lengthy wild-goose chase that leads nowhere.

The reason is that while you have received a complaint that raises concerns you have not in fact received a complaint with enough detail to allow you to do anything meaningful.  As such, your reaction to receiving a complaint like the above (or similar), should be to write back to the tenant and ask the tenant for more details and for those details to be provided in written form.  Receiving the details in written form creates a useful record to guide you in your work and further is useful if you are ever being judged by the Landlord and Tenant Board for how you responded to a complaint about anti-social behaviour like noise, smoking, shouting etc..

As such, you might want to respond to the email complaint received by asking for the following:

Hi Terry Tenant:

I received your email about the huge party and before I can do anything would you please provide me more details and answer these questions (with whatever information you have):

  1. The date and time that the party started;
  2. The date and time that the party ended;
  3. Who were the people making the noise, causing the problem, and if you don't know the people which apartment was having the party?  Do you know the name of the tenant?
  4. What kind of things were happening that make you say it was a huge party?  Was there noise?  How did you know there was a party going on?
  5. Where was the party happening?  Just in the unit?  Which unit? Hallways, common area, backyard?
  6. Why are you writing to me about this party?  Were you bothered?  Were you affected by the party?  If so, how?
  7. Was anyone else bothered or affected by this party--in your household or others in the building?
  8. Are there any witnesses? Did you speak with police? Did you make a report? Do you have a report number? Did you take any pictures, video?

If you could write back to me with the requested details that would be very helpful.  Once I have the details I can start an investigation to figure out what happened and to figure out how this issue can be dealt with.  Please share with me any concerns that you have.

Thanks   Larry Landlord


As you may have noticed, the responding email to the tenant asks: Who, What, Where, Why, When, and How.  While it may seem like over-kill to ask a tenant for these kinds of details it is indeed very important to have these details so that you can do your job as a landlord properly (this is explained below).

As a result of you response to the tenant let's assume that you get this reply:

Hi Larry Landlord:

Thank you for writing back to me.  I was up all night (Jan 22) and called the police at 2:00 a.m. (Jan 23) to get them to shut down the party.  A stereo was blasting until past 2:00a.m. that I could hear from inside my own unit.  The pounding bass made everything in my unit vibrate and I couldn't sleep. People were running up and down the hallways shouting, hooting, and there was a lot of swearing--though it was a party.  I thought I'd try to talk to the tenant who was having the party but I couldn't find the tenant as there were too many people.  The unit that was having the party was apartment 4--the new people who moved in two weeks ago.  I smelled a lot of cigarette smoke in the hallways and it was even coming under my door which triggered my asthma.  There was a fair amount of cannabis smoke too.  The partiers were friendly and happy enough--for drunk people, but I really wasn't in the mood to join in because I had to be at work and at a job interview the next day.  The place finally quieted down around 3:30 a.m. when the police arrived.  I spoke with the officers because I called them.  They saw what was going on and the party was shut down quickly.  I didn't get a police report number.  Please, can you do something about this?  I didn't get any sleep and I have a job interview today that I am going to have to cancel.  There are lots of witnesses, I saw a lot of the neighbours partying too.  Terry Tenant

You might get a reply as detailed as this one above or maybe it will provide only a little bit more information.  You might need to go back to the tenant asking for more details or perhaps you will need to make a call to the tenant to get the information you need to understand exactly what happened.

Make sure to take note when trying to collect the details about the complaint that you get a sense of how serious the complaint is.  If the complaining tenant doesn't follow up with you or refuses to cooperate, or demands anonymity, or is otherwise hesitant to take the matter any further, this tells you a lot about what you will ultimately be able to do (even if you manage to substantiate the complaint).

THE INVESTIGATION

Having received the complaint and having details about what is alleged to have occurred it is necessary for you to reach out to the tenant being complained about.  Depending on the seriousness of the complaint you might decide to call that tenant or email the tenant.  The communication with the tenant (being complained about), should not be confrontational nor accusatory.  It isn't a fight and I don't suggest that you approach it in that way.  You are not contacting the tenant being complained about as the advocate for the complaining tenant---you're not there to make the case against this tenant.  Instead, you want to approach this as a fact finding mission with the intent being to just understand what happened.  In this regard, you might want to start off with the tenant indicating that you received a complaint about a party in the building on Jan 22/23 and that you are investigating the complaint.  And from there you see what the tenant says.

The complained about tenant might email you back or perhaps it is an oral conversation.  However it goes, you should document the response and information that get from contacting this tenant.  Perhaps, given the size of the party, you decide to contact one of your other tenants in the building who you've known for a long time to ask what happened.  Document the information you get from this as well.  The point is to collect as much information as you can as efficiently as possible.

How many people you talk to and how much effort you put into the investigation really depends on how much information you get, what the evidence looks like, the seriousness of the issues, and what action you think will need to be taken.

INVESTIGATION RESULTS

Let us assume that as a result of the investigation you have figured out what happened.  For the purpose of this article I'm going to list two different conclusions from the investigation to demonstrate how two different conclusions can lead to two different actions you might take.

Conclusion #1

The tenants in apartment 4 are 3 young guys all in University.  When you contacted one of the tenants he said, "yeah sorry, but it wasn't so bad and was a lot of fun.  Mid-term exams were finished so we blew off some steam.  We didn't invite all those people they just showed up.  I don't know how they got in the building but we didn't let them in.  Anyway, people were having fun, no one got hurt, and it was a good time.  So I don't think it's a big deal.  The neighbour downstairs complains about everything and is a real stick in the mud.  The cops shut us down because of the complaint but didn't charge us at all.

Conclusion #2

The tenants in apartment 4 apologized immediately upon contacting them.  It turns out they threw a Superbowl party.  They went to every unit in the building and invited all the neighbours before the party and asked if they would be cool with a fun, loud, and boisterous "block party" in the building. Everyone was cool and loved the idea--especially the "free beer" from the kegs brought in.   They thought that everyone in the building was cool, everyone was invited, and no one said anything negative.  Turns out that they thought the complaining tenant was away as another tenant said that Terry Tenant was away on business.   They said the party was awesome and the first sign of any issue was the police showing up.  The party was shut down immediately and they asked the cops who complained because they wanted to apologize to that person.  The police said that "privacy" prevented them from sharing that information.  

About the smoking--tobacco and cannabis---they said they noticed it too and that they asked those guests who were smoking to go outside or to leave.  They are aware of the no smoking clause and that they don't smoke and find it very disrespectful that people would presume to smoke in the building without permission.

WHAT TO DO WITH THE INVESTIGATION CONCLUSIONS?

The investigation conclusions (both versions), confirm to you that there was a party, it was loud, and that there was activity (smoking, shouting, stereo), that would very likely be disturbing to other tenants.  The legal question is whether the complained about activity amounts to a "substantial interference with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege, or interest of the landlord or another tenant."   This legal question is the legal requirement for serving a Notice of Termination under section 64 of the Residential Tenancies Act (RTA).

As we look at the provisions of section 64 (above) ask yourself whether the investigation conclusions justify a determination that there was a "substantial" interference.  Not just any noise, party, or shouting that bothers another tenant is enough to meet the legal test for eviction.  The complained about activity must be "substantial".  Further, the "substantial" interference must also be interfering with "reasonable" enjoyment.

"Reasonable" enjoyment does not mean any kind of enjoyment that a tenant has.  The "enjoyment" that is interfered with must be "reasonable" within the context of the building and the community and the other circumstances of the residential complex.  For example, a tenant may really enjoy almost perfect silence in the early evening and then want to go to bed at an early hour (for whatever reason). If a tenant moves in above that tenant but lives a different life style with perhaps children playing or toddlers bumping around or babies crying or with a dog that barks occasionally or who watches television until late in the evening or who has several friends over regularly to play cards or other activity which isn't "perfectly silent" and the ordinary sounds of those activities transfer between the units due to the construction of the building--this is not an interference with "reasonable" enjoyment. 

A tenant's demand for "perfect silence" is not reasonable when the noises complained about arise from normal living and objectively reasonable behaviour.  At a certain point there are some sounds and building noises that are part of apartment living in that building and these sounds must be accepted.  Tenant's who cause normal sounds will not be in breach of section 64 RTA.


IS THERE A SUBSTANTIAL INTERFERENCE with REASONABLE ENJOYMENT?

I think in both investigation conclusions that it is fairly obvious that there was a substantial interference.  The music was admittedly loud.  The police shut down the party.  The sound travelled between units and vibrated the walls.  The smoking was contrary to the lease as well as the Smoke Free Ontario Act and it triggered asthma and made another tenant ill.  That a tenant would want to be able to sleep peacefully during the night is, I think, "reasonable enjoyment" as is not wanting to inhale second hand smoke.   In all respects, I think, both investigation conclusions support a determination that the tenants in apartment 4 breached section 64 RTA and that Terry Tenant's complaint is justified.

WHAT DO YOU DO THEN?

Section 64 of the RTA is the legal basis for dealing with a tenant substantially interfering with the reasonable enjoyment of the premises.  Section 64 is the section that supports a Notice of Termination in  Form N5.  The Form N5 is available on the Landlord and Tenant Board website.  The letter "N" stands for "notice".  The number "5" simply means that it is the 5th notice.

Because of what you have determined in your investigation you should consider serving the tenant in apartment 4 with a Notice of Termination in Form N5.

The N5 Form is the correct form to use when the issue is "substantial interference".  Unfortunately, it is also one of the trickiest forms to use under the Residential Tenancies Act.   If you have not filled out an N5 before you will need to set aside some time to read the form and the online guide and take time to understand how the form works.   An N5 is a voidable Notice of Termination meaning that a tenant who receives one will be given a chance to correct their behaviour and continue their tenancy.

There are blank spots throughout the N5 Form that you need to fill out. You can get help on how to fill out the various blanks by reading the Guide.  

There are two areas in the Form that are most susceptible to fatal error.  A fatal error is one that makes the Form void and useless.  Do not presume that a small mistake can be corrected.  For the most part, an N5 must be correct and any error results in the form being declared void and you must start all over again.  There is no benefit of the doubt and there is no sympathy for it being your "first time" and simply not knowing or making a mistake.  The Appellate caselaw is clear that certain errors in a Notice of Termination are not correctable.

Hence, I would urge you to pay attention to the blank part of the form in which you must insert the Termination Date.  Note that the termination date is a future date that you insert based on a specified number of days of notice.  For an N5 the number of days for a 1st N5 is 20 days and for a 2nd N5 it is 14 days.  Be sure to understand how to calculate time and how to count days in accordance with the Landlord and Tenant Board Rules.

The second blank spot that creates major problems is the part of the Form N5 that has you insert the "Details for this Notice".   The Form gives the impression that you can fill in the required detail in the small space provided.  What you should actually do is type into the space "see attached" and then attach a sheet of paper to the Form that provides the proper level of detail.

WHAT IS THE PROPER LEVEL OF DETAIL IN AN N5?

This question is answered by looking back at the level of detail you asked for from the complaining tenant.  The law provides that a tenant who receives an N5 Notice is entitled to a very high level of detail so that they know exactly what is being alleged and so that they know exactly what conduct to stop and so that they can know exactly whether the allegations are legitimate or wrong.  A tenant who receives an N5 will use the allegations as the basis for the claim against them and it is these allegations that the tenant will seek to defend against.

If the Details in the N5 are vague or insufficient then the N5 is void.  A void N5 means that the Landlord and Tenant Board has no power to evict and no power to consider the application.  Your case will be dismissed, the application fee that you paid will be wasted, and you will have to start again.

The "Details" that you should be providing in the N5 should cover: Who, What, Where, When, Why and How.  These details would include the dates and times of the incident.  The incident should be described and it should be explained how the incident substantially interfered with the reasonable enjoyment of the residential complex by the landlord or another tenant.    Allegations that are generic or just general allegations of "bad behaviour" are unlikely to be sufficient to meet the details requirement.

TO SERVE THE N5 NOTICE OF TERMINATION or not?

Is serving a Notice of Termination a landlord's only option when the complaint is well founded?  As you will recall you have two very different investigation conclusions arising from the same complaint?  Does your response, as a landlord, need to be the same for both?

The short answer is "no".  As a landlord you have a duty to investigate, determine what happened, and then decide what the next appropriate steps should be.  Simply because the legal test is satisfied does not mean that you must serve legal notice to terminate a tenancy.  You are entitled to exercise some judgment and to be reasonable in your approach.  When deciding how to deal with an issue (after the investigation is done), you might consider how the tenant reacted, the chance of further problems, the evidence available at a hearing, the assumption of responsibility by the tenant, remorse shown by the tenant, and the likely outcome at a hearing.

The first investigation outcome led to a conclusion, I think, that the tenant was indifferent to the problems that he caused.  He did not accept responsibility, blamed the complainant, and suggested that responsibility actually fell to someone else.   It does not seem that this tenant will have learned anything by virtue of the complaint and there is nothing to suggest that there was a misunderstanding or other circumstance that makes the incident less blameworthy.  For this tenant, serving a voidable 1st N5 Notice of Termination makes sense.

The second investigation conclusion is very different.  While an N5 could still be served--is it required to be served?  I suggest that it is not.  Here you have a tenant who sought buy-in from the neighbours and thought he had everyone on board.  He was remorseful of the problem caused and sought to apologize to the tenant who complained.  During the event he recognized his responsibility and tried to deal with smokers who were breaking the Rules. 

Further this tenant was seeking to have a party and make fun for all of the tenants in the building.  A block party style celebration in an apartment building is something that you might not want to discourage.  A happy tenant community that communicates well leads to a happy building.  As a landlord you likely want to encourage this.  Given what you have concluded would serving an N5 be over the top?

Of course you can serve the N5 but there are other considerations.  If you are satisfied that serving an N5 is unnecessary then make note of your conclusions and reasons and end the matter there.  You may then wish to contact the complaining tenant (Terry Tenant) and advise that you have looked into the matter and that you are satisfied that it will not happen again.  Invite the tenant to contact you if anything further does occur in the building.

FURTHER INCIDENTS

If you served the N5 on the tenant and the "substantial interference with reasonable enjoyment" continues within 7 days of serving the first N5 then you may apply to the Landlord and Tenant Board using Form L2.  

The "L" letter stands for Landlord and the "2" number simply means 2nd application form.  The L2 application relies on the N5 Notice of Termination that you served.  You may file the application on-line with the LTB and in due course the Landlord and Tenant Board will send you a Notice of Hearing to attend (presuming that the tenant did not move out in accordance with the N5).

If, after serving the N5, the tenant stopped the complained about behaviour for at least 7 days then the first N5 Form has been voided and you can not apply to the LTB on that Notice.  However, if after 7 days but before the expiration of 6 months the tenant does something again then you can serve a 2nd N5 Notice of Termination and then apply to the LTB using the Form L2.

AT THE HEARING

When you are drafting your N5's and making the various allegations in these Notices you should consider whether you are in a position to prove the allegations at a hearing.  For proof you will need witnesses to attend at the hearing to testify about what happened.  If the witnesses are unwilling to come or the person who complained refuses to cooperate in telling the LTB what happened then the entire process of serving a Notice and filing an Application is likely a waste of time.  As the landlord you have the burden of proof (on a balance of probabilities) to prove that the things you allege in the N5 actually happened.  If you can not convince the adjudicator that what you say happened did indeed happen then your case is dismissed.  A tenant is not required to prove anything at all because the burden rests with you as the landlord.

The examples in this article (noise, smoking, shouting) were all experienced by Terry Tenant.  The person disturbed by the incident is Terry Tenant and as such the evidence from Terry Tenant is very important to have.  Could you rely on a letter or affidavit from Terry Tenant as opposed to having her come to the hearing?  Not really.  While the Landlord and Tenant Board will accept a letter or an affidavit, if the tenant challenges the allegations and explains something contrary to what is written by Terry Tenant then it is likely that the LTB will accept the evidence from the person who actually showed up to testify over the person who only wrote a letter.

OUTCOMES OF N5 / L2 applications

There is a very wide range of outcomes when it comes to these kinds of cases.  The Landlord and Tenant Board is not actively seeking to terminate tenancies and evict people.  In fact, the RTA requires the LTB to consider preserving tenancies if at all possible.  An adjudicator is required to consider relieving against eviction when it is reasonable to do so.  In deciding this the adjudicator will take into account all of the circumstances as well as any issues that may arise under the Ontario Human Rights Code (HRC) if the issues arise from a disability or other HRC factor. 

At the hearing you will be first offered mediation (typically) and if that does not result in a settlement the case will proceed to hearing.  As the applicant you will proceed first and prove the allegations in the N5's to the best of your ability.  You will call witnesses, tender documents, show video, photos, and whatever else it is that you have to prove the case.  As your witnesses testify, the tenant (or the tenant's lawyer) will be permitted to cross-examine your witnesses.  

Once your case is concluded the tenant is permitted to lead evidence and defend against the allegations.  The tenant could deny what happened or perhaps admit what happened but provide a different explanation or context for the incident.  The tenant's entire case could be aimed at getting the LTB adjudicator to exercise discretion and let them stay notwithstanding the incident.

You will be permitted to cross examine any of the tenant's witnesses and the tenant as well if the tenant gives evidence.

The hearing will end with you and the tenant making submissions and arguing to the LTB what you think the evidence proved and what the proper outcome of the case should be.

The adjudicator will very likely reserve the decision.  This means that the decision will be written out and delivered in the mail in the coming month or so.  There is no strict deadline for a decision being made though the service standard suggests a 30 day period for a decision to be rendered.  

CONCLUSION

This article is a high level view of how to deal with complaints about tenant's making noise.  Within this article there are topics that have been skimmed over but which you should still learn about.  The technicalities of Notices of Termination, how applications are filed, how evidence is presented, how law is argued, and the various possible outcomes and how to argue for them are all major aspects of arguing and presenting cases before the Landlord and Tenant Board.

Is it reasonable for a landlord to be expected to know how the Residential Tenancies Act is to be applied in detail?  My personal view is that every landlord has an obligation to know the structure of the RTA and the high-level structure of the law.  Every landlord should be aware of their legal obligations and the legal rights of tenants in the big picture.  A landlord can get into far too much trouble if they don't have a basic understanding of the Residential Tenancies Act.  Beyond that, I do think it is a bit much for a landlord to have a detailed appreciation of the RTA.

Unless you are a very unlucky landlord and have very troublesome tenants you should hope to have very little interaction with the LTB and hope to not really need Notices of Termination.  If you have selected and screened your tenants well you could reasonably avoid the LTB and the legal niceties of eviction.   However, the key is to be aware of your obligations and to know when you are getting out of your depth.  When that occurs, consider retaining a paralegal or lawyer who does this kind of work on a day in and day out basis to properly guide you.  While the expense of legal help is unavoidable at least you will have the best chance of dealing with a problem and solving it.  Landlord's can suffer serious losses if they have a tenant disturbing other tenants and whose behaviour isn't controlled.  Other tenants will only tolerate being bothered for so long before they give a notice to terminate their own tenancy (so you lose a good tenant) or they decide to file an application against you to force you to do your job and pay them money for not doing it.

TAKE AWAY FROM THIS ARTICLE

You will hopefully realize that when you receive complaints about tenants making noise from other tenants that you have a duty to respond to that complaint.  You must investigate and determine what, if anything, needs to be done about the incident complained about.

Michael K. E. Thiele
www.ottawalawyers.com

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