When landlords need to referee fighting tenants: What do you do?

 

What does a landlord do if tenants complain about each other? (Noise, music, smoking, shouting, etc.)

Residential Landlords often find themselves in a peculiar spot when tenants in different apartments can not get along.  While the landlord may have a reasonable relationship with all of the tenants it is entirely possible that different tenants do not get along with each other.  It may be the fault of one tenant, both tenants, or a little bit the fault of each.   The troubling part is that the landlord is called upon to be the referee and to “do something” about the behaviour of one or more tenants.  The trouble, of course, is that the different tenants make different allegations about each other such that it is difficult to know what is true, what is made up, and what may be an exaggeration or wrong headed view of what is actually happening. 

Perhaps it would be useful to describe a scenario that I was recently confronted with.  A landlord client contacted me to advise that they have a duplex with a unit above and one below.  The upstairs tenant was complaining that the downstairs tenant was treating the backyard like it was entirely their own backyard and was leaving patio furniture, a gazebo, and a barbecue out there and then telling the upstairs tenant that they could not use the backyard.   The downstairs tenant was also leaving her dog loose in the backyard and was failing to pick up after it.

The downstairs tenant, when approached by the landlord said that the upstairs tenant was being a nasty person (not the word actually used) and was only complaining because the downstairs tenant complained about her smoking in the building and had asked her to stop.  The downstairs tenant denied telling the upstairs tenant that they could not use the backyard and that normal use of a backyard includes leaving yard furniture in the backyard.   The downstairs tenant said that the dog was only off leash, in the backyard, when accompanied and that they picked up after the dog soon afterward and always during the same playtime.

The upstairs tenant responded to the allegation of smoking by saying that she has never smoked in the unit and that the smoking issue was only raised when she tried to go to the backyard to have a cigarette and was told that she couldn’t.

The above facts were just the beginning of many months of complaints received by the landlord from each of the tenants.  As the landlord tried to speak to each of the tenants the landlord received more complaints about the other tenant and denials or explanations about the complaints received.   Asking the tenants to try to get along was pointless and it seemed like the interpersonal conflict was escalating with increasing demands from the each of the tenants to evict the other of the tenants.

The landlord was tired of trying to referee and was especially frustrated at trying to find a way to resolve the problems.  The landlord did not live on the property and never had any first hand knowledge or evidence of the issues.  

The landlord was looking for advice on what to do and how to solve the problem of the sniping tenants.   The problem is real because the landlord does have a duty to ensure that all of the tenants have quiet enjoyment of the property.  This is an implied term into every residential lease in Ontario.  The ResidentialTenancies Act (the statute that sets out the law respecting residential tenancies) refers to “quiet enjoyment” as “reasonable enjoyment” and section 22 of the Residential Tenancies Act provides that “a landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order … substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household”.

The landlord becomes the referee of tenant disputes because of section 22 cited above.  How so? Well, if a tenant is harassing another tenant, or saying or doing something that is interfering with a tenant’s reasonable enjoyment then it is the landlord’s duty to investigate and take legal steps to stop the harassment.  A failure to do that is a breach of section 22 RTA, and then the tenant who is being harassed by another tenant can end up having a legal claim against the landlord for that other tenant’s behaviour.

Therefore, while it might be tempting to tell fighting tenants to sort out their own problems or “grow up” the reality is that the fighting is the landlord’s problem because that fighting can lead to claims for a rent abatement, fines, damages, and “other” orders upon application by the tenant to the Ontario Landlord and Tenant Board in Form T2 (tenant’s rights).   Why does the landlord suffer the having to deal with the claim?  Because the Residential Tenancies Act and the Ontario Landlord and Tenant Board do not give tenants a right of direct action against each other.  A tenant can’t file an application to get another tenant evicted.  A tenant can’t file an application to force another tenant to behave or suffer the consequences.  Tenants can only file an application against the landlord, its agents, and the superintendent (not other tenants).   Therefore, when a tenant is harassed and nothing is done to stop it, the tenant’s only legal recourse is to sue the landlord.

SO WHAT SHOULD the landlord do?

The first thing that you, as landlord, should do is to establish a formalized complaints process.  Typically, the bickering tenants are happy to share their complaints by talking with the landlord.  Little is put in writing.  That needs to stop.   As a landlord you should require all tenants to put their complaints, demand for service and anything else in writing to you.  You can produce a form, have a special website to receive complaints or requests or have a pre-printed form for tenants to fill out and hand in at the office.   How you get the complaint in writing does not really matter.  The key is to get it in writing.

I strongly urge you, in demanding that complaints be received in writing that you set out certain minimum information requirements in any complaint.  For complaints about other tenants you will want the complaint to include at least the minimum following information:

1. Their own name and unit number
2. The date of the complaint
3. The name of the tenant they are complaining about
4. The unit number of the tenant they are complaining about
5. Identifying information if they do not know the name of the tenant or the guest or family member who is causing the problem
6. The date and time of the incident
7. A thorough description of the incident and identify witnesses
8. The impact of the incident on the complaining tenant
9. Information about what the complaining tenant did about the incident (i.e. call police? Bylaw? Confront the tenant? Confront the guest? Nothing?)

If every complaint you receive has at least the foregoing information you will have a base level of detail needed to efficiently investigate the complaint.  Without the base level of detail being provided with a complaint you may find that you are running around, asking questions, and trying to investigate issues that you do not understand in the first place.  This is a frustrating situation (you will eventually want to scream) and you will basically waste your time trying to collect information that you should have at the start of every complaint.  Hence, require all complaints to be in writing (or after receiving an oral complaint tell the tenant they need to put the complaint in writing so that you can take action).

INVESTIGATE

You are required to investigate complaints and to take appropriate action.  The trick will be to decide what is "appropriate".  Some complaints may be frivolous, vexatious, or just made up and others can be exactly right, precise, and serious.  There will be a range of seriousness in the complaints and by receiving the complaints in writing you will be able to judge the seriousness of the complaints and let that inform your response and speed of it.  Some complaints may be resolvable by you simply calling the tenant who was complained about.  Some complaints may require you to attend at the property, inspect the property, speak to other tenants, staff and witnesses, or make inquiries with 3^rd parties (police, City officials), to resolve the complaints.

You are, as a landlord, required to take complaints seriously and to address them promptly.   There is indeed hard time consuming work involved and some tenants may of course occupy a lot of your time.  That is part of the job of being a landlord-- to take complaints seriously and deal with the what is being alleged.

RESULTS of investigation

It is important that you maintain some notes of what steps you took in relation to the complaints received.  It is valuable to record the date and time of receiving the complaint, what you did with the complaint, who you spoke to and when, what you observed, what evidence was available (for example security camera footage) and what conclusions you drew from your investigation.  If the complaint is well founded then of course you may have collected evidence too—video, photos, voice recordings, text messages (from other people), emails (including from other people), witness statements etc..  It is important to collect this evidence and preserve it for use if you need to take legal action.

It is also possible that you conclude that the incident complained about can not be proven.  Or, you might conclude that it never happened.  Or you might conclude that the complaint was made maliciously.  Whatever you conclude, you should make a record of what you concluded and why you reached that conclusion.

The value in recording your conclusion is that through a proper investigation you are fulfilling your duty as a landlord under the Residential Tenancies Act.  Your records setting out what you did is evidence of fulfilling your duty.   Section 22 of the RTA does not make a landlord a guarantor of quiet enjoyment/reasonable enjoyment—meaning you are not responsible for the impacts of other tenants’ misbehaviour on other tenants—so long as you take reasonable action to investigate and determine whether the complaints are well founded or not and to take action where the circumstance require it.

WHAT TO DO WITH the conclusions of your investigations?

When you have reached your conclusions you should report back to the complainant about what you have concluded.  This does not mean sharing the nitty gritty details that perhaps were shared in confidence by others nor does it mean that you disclose confidential information shared with you as the landlord.  However, it does mean that the complainant should receive some kind of indication of what has become of the complaint.  Even if that means that you are closing the complaint without taking further action.

When you reach a conclusion that a complaint is well founded and that “something” did happen you have discretion and flexibility on how to respond.  Just because a complaint may be well founded does not mean that you need to serve legal papers and pursue eviction of the tenant.   You have discretion to determine a reasonable outcome of a complaint and to deal with the wrongdoing tenant in a way that solves the problem or likely resolves the problem. 

For example, say the complaint is that the upstairs tenant was shouting, screaming, and partying until 3 in the morning and that guests were vomiting in the bushes and the downstairs neighbours planters were destroyed.  That kind of behaviour, if proven, could indeed justify serving a Notice of Termination in Form N5—in fact, some people (especially the downstairs tenant) may feel that it is absolutely mandatory for you to serve the Notice of Termination and take all necessary steps to evict the tenant.

That being said, what if you discover in your investigation that the incident/party was the result of the tenant’s high-school aged child having a party while the parents were out of town.  You discover that the tenants had told their child to have only a few friends over and to be “careful”.  The parents tell you that the child has never been in trouble and they thought he could be trusted.  The parents then explain how the party got out of hand, that they have disciplined their child and that they have approached the complaining tenant to compensate the tenant for the damaged property and further that they have instructed their child to apologize to the neighbour.

Perhaps you conclude that the explanation is sincere and that you believe there is little risk of anything happening again.  In these circumstances it would not be unreasonable to decide to close the investigation with a decision to simply do nothing other than to provide an oral warning to the parents that this can not happen again.   Some might find your response wrong and inadequate.  However, you have the discretion to make this decision if you can demonstrate a logic and rationale for your decision.   It is not always necessary to seek the harshest outcome (termination and eviction).  In fact, the Landlord and Tenant Board itself exercises discretion and gives numerous second chances to tenants who have made mistakes.

SERIOUS conclusion of complaints being well founded

If your investigation does result in your determining that the incidents occurred, that there is no good excuse and that there is a risk of the incidents occurring again then it may be necessary to deal with the issue as provided in the Residential Tenancies Act (RTA).

The RTA has a series of forms—N5, N6, N7 that are the main “behaviour and misconduct” forms.  These forms start the legal process to terminate and evict a tenant for bad behaviour (including damage to property).   If through your investigation you have gathered information and evidence that would justify the serving of a Notice of Termination then you need to seriously consider doing that.

Serving a Notice of Termination is your “duty” as a landlord if the circumstances call for it.  Failing to take this legal action can lead to legal action against you.  Complaining tenants, who feel you are doing nothing, can file an application against you.  Interestingly (based on recent cases decided by the Condominium Authority of Ontario), a condo corporation (or other owners) can take action against you and your tenant for breaches of rules and bylaws of the condo.  Those cases lay the blame at your feet (for the tenant’s behaviour) where you do nothing to deal with the problems caused by your tenant.  These cases have resulted in Orders of several thousands of dollars in legal costs being levied against the Owner (i.e. Landlord) and those costs are liened against your unit which means you are paying those costs one way or another.  

Hence, the conclusion to be drawn is that you have an obligation to take legal action when the circumstances demand it—based on the reasonableness standard.   Yes, you have flexibility, but that flexibility and discretion needs to be judged in the context of reasonableness.  If you fail to take action it could be very costly to you.

THE FORMS—the action

Can you fill out the Notices of Termination on your own?  Can you shepherd your case through the Ontario Landlord and Tenant Board system on your own?   The answer is most certainly “yes” though it is highly advisable that you don’t.  Once you get to the Forms stage of proceedings you are into highly technical legal requirements that will very likely “catch you out” at least once if not more times.   You may take a look at the Forms on the Ontario Landlord and Tenant Board website and you may say to yourself—“this doesn’t look all that complicated”.  And in a sense you are correct.  It doesn’t look complicated and you would think that with a little reading all should go well.  There could be nothing further from the truth.  Notices of Termination need to be perfectly correct.  The slightest error and they are void--void means start again, lose your application fee, and do all the work again.  If you attend hearings you will hear landlords exclaiming frustration at what they describe as minor, petty, technicalities, that should be overlooked because what was meant was “obvious”.   Sorry, case dismissed (like it or not).

Licenced paralegals and lawyers are available for drafting and serving Notices of Termination and for appearing at hearings to represent you.  While no one likes to spend money on legal fees you may find that the average cost of representation is well worth it relative to the headaches and wasted time that may come with representing yourself.  With experienced paralegals and lawyers you are likely to have a smoother experience and hopefully only have to attend an LTB hearing once to solve the problem.  

The LTB, while it in theory represents a friendly process where you are encouraged to just “tell your story and all will be fine” the reality is that it is a highly adversarial process full of technicalities, loopholes, and procedural niceties that will turn the novice inside out and spit you out if you encounter an opposite party who understands the law, the technicalities and the legal processes of the Landlord and Tenant Board.   Do yourself a favour (at least the first few times) and retain an experienced legal representative at the drafting of the Notice of Termination stage and follow their good advice.  Whether you win or not, starts with what you write in the Notice of Termination and it is the right stage at which to seek legal advice.