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.
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:
- Their own name and unit number
- The date of the complaint
- The name of the tenant they are complaining about
- The unit number of the tenant they are complaining about
- Identifying information if they do not know the name of the tenant or the guest or family member who is causing the problem
- The date and time of the incident
- A thorough description of the incident and identify witnesses
- The impact of the incident on the complaining tenant
- 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 3rd 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.
Great write up, thank you. I had a question: what do you do in a case where it seems like the complainant is correct, you try everything you can to resolve but it does not get resolved. Then you serve the N5, file the L2 and get the hearing. At the hearing after considering the evidence and the "he said-she said" nature of the accusations, the adjudicator decides on a balance of probabilities that the other tenant is right or perhaps the level wasn't substantial and they dismiss the application?
ReplyDeleteThe question being if the complainant starts complaining again after, what does the landlord do? Just go ahead with the same steps just to protect themselves?
Great comment and question. I've been in a situation where my landlord client issued N5's against each tenant--based on allegations against each other--and filed the L2 and had them scheduled back to back. The point to be made was "enough already" and hopefully to demonstrate to the LTB that the entire situation was untenable. That was fun (i.e. weird), and of course isn't your question.
DeleteI think you hit the nail not the head. Just because a tenant complains doesn't mean that it is true, or that the LTB will find the complained about behaviour to be serious or substantial, or that relief shouldn't be granted. That is simply the reality of the situation. It is why I suggest that when you investigate that you collect the evidence and then exercise some judgment not just on what you believe is true but on what you can prove. After a while you get a sense of what kinds of things, if proven, will result in eviction, relief, or refusal. When dealing with troublesome tenants (on behalf of landlords) I get quite picky about the allegations that will be contained in an N5. Some allegations are horrible--but unprovable. These are useless. Some allegations I know are true and would warrant termination if proven--but if the witnesses will not show up then the allegation is useless. It seems to be a basic truth that a witnesses willingness to participate is inversely proportional to the closeness of the hearing date. All of sudden they have a number of excuses not to show up. A common one is a fear to suffer retribution for testifying.
I suppose my reply then to your question is that indeed you may have some do overs--but in time you will get fussier about the evidence to support the allegations and you will require more evidence to the point of knowing when you have a winner. Until then you will have some hit and misses. Of course, there is nothing wrong with running a hearing (and losing) as it does prove that you are willing to do the job. The exception of course, is if the Board's Order comments negatively on the manner of presentation.