The Landlord and Tenant Board has held that the "ordinary" noise caused by the normal activities of children is not a basis for eviction. The problem with this statement, of course, is that "ordinary" and "normal" are subjective and what might be normal and ordinary to one person is utterly outrageous to another. So, some examples of "ordinary" and "normal" may be in order. The Board has held that a tenant's children using a swing set for chin-ups, riding a dirt bike, and using some obscenities was not grounds for termination. Nor was it held to be substantial interference for teenage children to be hanging out in a lobby and spending time. In an even more extreme example, a tenant's adult son who harassed and intimidated other tenants did not result in the eviction of the tenant so long as the behaviour was rectified and apologies given.
Over the years I have had some extreme examples of misconduct by children that did not result in the eviction of the tenants. In one case, a pre-teen got in a fight with another child in the park. The parent of the child who was hurt at the park came to the apartment to speak with the child's parents who happened to not be home. The child answered the door and in doing so pointed and threatened the person with a lighter that looked like a handgun. The police responded rather forcefully and the weapon was seized. The family was not evicted as the family was a good family, the parents responded with all the discipline that is deemed appropriate today, they apologized to the person who was threatened and their history within the building was shown to be unremarkable. The Board maintained the tenancy on the condition that no illegal act occur for the following year.
Another example is that of a child who gained access to the roof of a tall apartment building and at the instigation of a friend joined him in throwing rocks from the roof (16 stories up). One rock hit a person who was slightly injured. Again, in this case the tenancy was maintained as the parent disciplined the child appropriately and was doing all that she good to control the behaviour. The tenancy was again preserved conditionally.
The examples above should not lead to the conclusion that it is impossible to evict a tenant for the actions of their children. In fact, tenants are regularly evicted for the actions of their children and the context of those actions is quite important. In a case from several years ago an adjudicator in hearing a case involving the actions of children stated as follows:
Taken in isolation, each singular incident or classes of complaints testified to by the landlord and her witnesses might not suffice. But taken cumulatively, they unfortunatley establish that the tenant's children are by their loud and abusive language, by their fights and rowdiness, by their littering, by their damage to property are [sic] beyond what the landlord and other tenants are by law compelled to endure before the remedy of eviction is granted."
So when it comes to children and their behaviour, I think it is fair to say that context is everything. One off incidents in an otherwise unremarkable tenancy, where parents are clearly disciplining their children and doing what they can, are regarded sympathetically by the Landlord and Tenant Board and tenancies will be preserved where the conduct can be controlled. The opposite also seems to be the case, that where children are wild and parents are wilfully blind to the aggravation caused by the behaviour, then the tenancy will indeed be terminated.
I have a long story, I know I'm entitled to enjoyment of property and such and so are they, but they are going to far with what property they are claiming and how much enjoyment they are allowed to have.
ReplyDeleteI live in a mobile home park, I own my mobile and the tenants do not own their mobile home they are renting their homes and they are being a pain in the butt by being loud and leaving messes for me to clean up and by mess I mean 2 feet high by 10 feet long snow banks from sledding down the snow bank that the plower made from clearing snow.
Last year they had my driveway completely blocked off after I cleaned it all up. Guess who had to clean up the kids mess? ME, I'm 100% sure the mother say the mess her kids made and quickly left for the weekend so I wouldn't make them clean up their mess.
Long story, it really is, the landlord ended up having me print a warning letter to get these kids to stop playing on the snow banks and stop playing in the roads and playing in the cul-de-sacs.
The landlord claims he tried to get them to stop but I don't think he did, not one bit.
So, again, this year, they are back, (the kids) and will make a mess in my driveway again. I do have plans to file an application because he did not do anything at all that would be classed as a reasonable force to get them to stop.
Today, the neighbours kids had a friend join them, the snow bank they have been playing on is around a telephone pole that has wire guards on them, they hang off of the guards, they fall on my property, they were throwing snow on my property, they use my property to run all over this snow bank. They made a fort in this snow bank, dug out all the snow so they can crawl under it like in a tunnel. We don't have much snow here yet this year but last year in the big snow banks these kids shovelled out the banks so they could hide in them all over the park.
They throw snow back in the roads off the snow banks. Last year I have on video that one of the kids went to roll a big ice snow ball down the bank and "just" missed a car that was driving by to pull into their home.
There is no play area for these kids, so, they use all of the property here as they wish, what if the kids get hurt, can't the landlord be liable for not being forceful enough?
They play monkey in the middle and throw the ball as hard as they can and when they miss the catch I'm standing watch just waiting for it to go through a window, if that happens I'm filing against the landlord for cost of window replacement then he can go after their landlord which is my landlord's tenant for the cost of what he is out etc.
Do you have any decisions from Canlii or decisions from the USA where the landlord was held liable for kids getting hurt on the landlords property even though it is the fault of the kids own actions for why they got hurt?
My landlord thinks he can't be held liable for such things, he really does, told me by email.
I want to rent out my home but, I can't because of all these kids roaming around playing everywhere. They race their bicycles down the street, skateboards, soon they'll have houver crafts all over the place.
Thanks for doing this blog, it really is appreciated!
Hi..if my first floor childern making unwanted noise and scarming all the time & after discussion so many time their parents not able to control the childern....after all hectic day work no rest in evening as well as in the weekends .pls suggest what should i do..
ReplyDeleteHi: It seems to me that you have done the reasonable thing already and have spoken with the parents of the kids. Now, you have no choice but to complain to the landlord and it will be the landlord's job to deal with the problem. As you complain to the landlord you should collect evidence of the severity of the noise and screaming. If you can record it, or have others hear it, that would be helpful. There is generally an expectation that children will be a noisier than parents and it is not reasonable to expect perfect quiet. Children also have different hours and sometimes rise early and therefore make noise that you might not expect to hear really early in the morning. Some of these noises are not something that you can really do anything about. Children get to do their thing as well and if the walls are too thin then the problem may be the building and not the behaviour of the children.
DeleteThat being said, parents can't allow their children to go crazy--scream, bounce off the walls, and behave like hellions. Reasonable behaviour is required from all occupants of a rental unit--though what constitutes reasonable is contextual.
If you can establish that what you are complaining about is unreasonable then the landlord can serve a Notice of Termination in Form N5. Depending on the reason for the noise you might have to chase the landlord to install sound proofing and insulate your floor (their ceiling). Perhaps a thick carpet with underpadding in your unit would stop noise transfer (something for the landlord to provide). If the behaviour of the children arises from a disability of some kind then it could be that the landlord has a duty to accommodate--which does not mean you have to live entirely disturbed--but solutions other than eviction may need to be found.
If the landlord takes no action then your next step is to file an application against the landlord using a Form T2. Your complaint would be that the landlord is not ensuring your right to quiet enjoyment and you would ask the Board to give you a rent abatement and Order the landlord to address the problem.
Michael K. E. Thiele
www.ottawalawyers.com
Dear Michael,
ReplyDeleteI am having a problem with my neighbour that lives in the basement. Everyday between 3.30 and 8.30 pm my kids come back from school and play together in our living room.
They play a lot and make some noise. I think it’s a reasonable noise for 2 kids playing. The problem is that in the basement the noise sounds too loud and the neighbour is complaining to the landlord. The house has 20 years and I think there is no noise insulation between the two floors.
Can I be evicted because of it? I think that 2 kids playing between 3.30 pm and 8.30 pm is more than reasonable to have some noise taking in consideration that the house is completely silent the rest of the day. We go to bed at 9 pm everyday and wake up at 7am and don’t make any noise until 3.30 pm.
I would appreciate your professional opinion
Hi: If your landlord were to take legal action against you, based on complaints from the downstairs neighbours, you would be served with an N5 Form. This form asserts that you will have "substantially interfered with the reasonable enjoyment" of the property by another tenant (i.e. your neighbour). The details in the notice (written in by the landlord) would likely state that your children are being loud and unruly. It might say they are banging, shouting, jumping, stomping, bouncing a ball, playing too loudly with toys, etc. etc.. The N5 would give you an opportunity to stop the complained about behaviour to void the N5.
DeleteSo that being said, does the activity you describe amount to a "substantial" interference with "reasonable" enjoyment. My experience says "no" it doesn't. The behaviour you describe sounds reasonable and appropriate. In fact, complaining about this kind of activity sounds very close to a requirement to ban children from your unit (which would be illegal itself).
The key however will be the evidence of what your children are doing. The neighbour will state and testify that they behave like hooligans and jump around like elephants. You will say the opposite (as you did above). The case will be a he said versus she said. In theory, in a straight contest of this type of evidence you would win because of the burden of proof. The adjudicator could believe both the neighbour and you and you would win because the landlord has to prove his allegations on a balance of probabilities.
That being said, "winning" on a balance of probabilities is likely cutting it too close. I'd recommend that you set up your camera phone and video several hours of activity (typical activity) on a regular basis. Be in a position to demonstrate the reasonableness of your children's behaviour.
Once you can show that your kids are playing reasonably then the focus can be on the landlord's failure to sound insulate the floor. Beyond that, if you want to look particularly good, mention to the landlord that your children are playing reasonably and therefore ask him to perhaps carpet the living room with a thick underpad and quality carpet or area rug. Perhaps this would dampen the sound sufficiently. Then of course there is always the question of whether the downstairs neighbour is being overly sensitive. Some tenants have unreasonable expectations. The Landlord and Tenant Board has recognized that certain noises in apartment buildings are simply inevitable and the result of apartment living that tenants need to accept. You will help yourself greatly if you can establish that your childrens' behaviour fits within the normal and usual activity of children and that it is "appropriate".
Note that I have indeed done very similar cases to what you describe and each time the LTB has ruled in favour of the tenant (and children). The trick is to be able to prove the kids are not hellions bent on terrorizing the neighbourhood!
Hope that helps
Michael K E Thiele
www.ottawalawyers.com
Hi Micheal,
ReplyDeleteI am the property manager of a townhouse complex. I am receiving numerous and constant complaints from parents about other children and the behaviours while playing outside with their children. The behaviors include name calling, teasing, rough housing and excluding one or the other from joining in the play etc. It appears that every time it is a different child that is being targeted and it goes back and forth between all the children. When the parents are informed of the behaviours they blame it on the other children that are playing outside at the time and/or deny it and/or ignore the behaviours. This is a vicious circle and I have informed them that it is not the landlords responsibility to either parent or discipline the children of the complex. If I start serving N5 notices to the parents, I will have approx. half of the complex at the LTB in no time. What exactly are my responsibilities regarding this issue?
Looking forward to your reply,
Hi: Thank you for the shaking my head moment of the day. You just can't make this up and when you think you've heard it all you hear something like what you've just described. At the core, I agree with you that it is not the landlord's responsibility to parent children nor to discipline them. In one sense I like hearing that the families in your neighbourhood don't helicopter parent and they actually let their kids play outside unsupervised and it sounds like these kids get to be kids in the old fashioned way and actually play. That being said, I find it surprising that "let them play outside" parents would actually complain to the landlord about these kinds of problems. Surely, a parent whose child is complaining about these kinds of things would go outside, supervise, speak to other parents, or teach their kid how to resolve conflict with bullies. Unfortunately for you, that doesnt seem to be the case.
DeleteDo you, as landlord, have any obligation here? I think that there is a line which if it is crossed requires you to take action and seek to evict the entire family. What is that line? It will depend on the circumstances, obviously, but I'd say the line is approached and passed if you whatever the incident is makes you think it is appropriate to call the police and make a report to the Children's Aid Society. If the behaviour is getting out of hand, is being supported and instigated by the family of the offending child and the "normal" conflict resolution steps that the victim's parent(s) take are refused/rejected then I think you can reasonably be called upon to serve Notices of Termination. I wonder, if in those instances that the circumstances might not also call for a police report, CAS report, and the serving of an N6 (illegal Act) or N7 (impaired safety).
The basis for the landlord's responsibility is rather circumspect. You don't, as landlord, have a direct obligation to supervise children or playground squabbles. However, section 22 of the Residential Tenancies Act does impose a duty on the landlord to not substantially interfere with the reasonable enjoyment of the premises by a tenant or a member of the tenant's household. Every lease includes a covenant of quiet enjoyment--which means you as the landlord are granting the tenant peaceable use of the property absent of substantial interference with the reasonable enjoyment. If a tenant or a member of the household is subjected to behaviour by other tenants that amounts to a "substantial interference with reasonable enjoyment" then it is a landlord's duty to take action. The failure to take action when circumstances demand action could make the landlord liable on a T2 (Tenant's Rights application).
I think the LTB would see the majority of the complaints you hear about as playground squabbles that the landlord can't possible deal with. However, if you get complaints about behaviour that are truly over the line from children or parents in a family that simply won't be reasonable then I think you could indeed, in those circumstances, have a duty to act.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
hello... i have a girl friend and 4 and a half yr old, and we are on the third floor, when we moved in it was before my child was born... the old management had a child which is directly beside me, they are no longer there...their child grew up here... now there's a woman down stairs who is mentally unstable pounding with some unknown object on my floor, and also complaining to the landlord about noises... i told the owner/landlord that you can basically hear doors being shut down stairs, and just about everything else... i read the above comments.. so i mentioned to the owner about the woman banging ...and i mean LOUD...usually before school... 7-810 am and he says...ya i been getting complaints about the noise coming from your apartment... so i said well ya i got a child...now i honestly do my best to do what we can in the scope of still living life here... he says... well if the matter continues i'll have to take actions...then he suggests to me... i will give you a lower unit...without even thinking about it... he has no lower unit avail. they are 1 bedrooms and bachelors...the look on his face... then i said and whom is going to relocate me... he said he would pay. but there is no other unit avail... we have been harassed by old management before he stepped back into the picture the old management got fired for not doing duties. so the owner whom lives 9 miles away is taking over... we are just fed up with the picking sides... he also said children should not be on upper levels,but yet the building next door is his ,and again a child lives there also, she is maybe in her teens now, but they also lived there when she was young....its getting a bit old...we do nothing wrong... i was actually considering a camera be set up...and i stated that to the owner...the looks on his face were not pleasing ...even the look when i said i already looked into legal contacts with LTB.... the banging on our floor has scared my child many times in the past, but yet i suck it up.... i hope i wrote enough info...
ReplyDeleteHi: I'm going to assume that the noise being made by your child is "normal" noise. "Normal" in the sense that any regular child would make the same noise in the same way behaving like an objectively reasonable 4 year old.
DeleteOn this assumption the landlord has some work to do. It is not acceptable that downstairs neighbour bangs on the ceiling (your floor). You should make a written complaint, document the sound (record it if you can), and require the landlord to take action. If it continues and the landlord does nothing then you can take the landlord to the LTB on a T2 application for failing to protect your reasonable enjoyment of the premises. (There are other articles in this blog about that).
As for the noise your child makes. The landlord has to come up with a solution or perhaps this kind of noise is the kind of noise, in this building, that people just need to learn to put up with. Apartment buildings have their own character and some noises are just impossible to stop because of the construction of the building. You would want to be able to prove that you are being considerate of your neighbours but at the same time you are entitled to live a normal life---and that includes having a toddler who behaves in the usual ways.
The landlord should investigate how to deal with the sound transmission in your building. Sometimes the answer is thick carpets with underpaid, installing sound dampening insulation, installing actual new wallboard with sound dampening characteristics. The answers, if not obvious to the regular person could be explored with an engineer who could figure out why noise is travelling and make suggestions. Beyond that, moving you is an option if you are agreeable to moving--but ultimately, terminating your tenancy to move you is not a "right" that the landlord has. However, if you get a nice place, same or similar rent, and the landlord pays--that could be a good solution if you like the idea.
The key for you will be to collect evidence of what is causing the noise in your unit and for you to be able to show that the noise is being created by "normal" behaviour. Before the landlord lines up to spend money on renovating (carpets, walls, insulation), you can assume that he will go with the cheaper option and try to evict you instead. Once you demonstrate that you can beat such an attempt then the landlord will have to come to the table to negotiate a solution. Ultimately, he might just tell the downstairs tenant to suck it up and if she keeps banging on the ceiling take steps to evict her.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi There,
ReplyDeleteI am due to have a baby this August. My landlord knows, and I live in a three story apartment (from the 60's). I am aware that I cannot be evicted for having a child. However, I am worried that I can be evicted for my baby crying as this is a super old building that is not properly soundproofed. I am wondering if that is something I can expect from neighbors complaining (as this will be the first baby in the building) and if eviction is a possibility, even though you cannot prevent a baby from crying given it is their only form of communication.
Hopefully your neighbours will celebrate with you and be fairly understanding about any crying noises transferring from your unit to theirs. You are anticipating a problem before it actually is one and frankly it may never come to pass. If your neighbours don't complain then it really doesn't matter how much your baby cries. If your neighbours do complain it is unlikely to actually lead to anything. If your baby cries a normal amount then your response is simply that this is a part of ordinary living and that these sounds, in this apartment building, are going to be heard by all the tenants. Your position is that a baby crying is not a "substantial" interference with "reasonable" enjoyment--this being the legal test to take eviction proceedings against you. Of course, a baby crying incessantly can indeed drive people to distraction--including the parents. You will of course do what you can to sooth the child and this will be your best effort with advice from doctors etc.. If you do that then it is unlikely that any eviction is going to be successful. Further, if the landlord starts getting aggressive about noise--well then the best defence is a good offence and the question should be what can the landlord do about noise transference in the building? That should be answered by an acoustical engineer (or similar) and perhaps the landlord can enhance the privacy of all tenants by installing sound cancelling materials and barriers to stop noise transference. I'd certainly insist that this is the only reasonable way to proceed and that this is preferable to evicting a tenant with a new baby. I'd assert also that evicting a person because they have a baby--and that babies notoriously cry--is to effectively create an adults only building and be discriminating against families (i.e people with children). This would be a Human Rights Violation and opens up a giant can of works for the landlord. Top it all off with a rather inefficient Landlord and Tenant Board, you baby will likely be a toddler and perhaps older by the time the hearing at the LTB actually happens---i.e. crying will have been an issue long in the past (hopefully!).
DeleteGood luck.