Friday, 25 April 2014

The Neighbour's Noise is Driving Me Crazy!

As we head into spring here in Ottawa---and hopefully summer soon---a seasonal stressor for many tenants is about to occur.  Windows will open, decks will be occupied, porches will have parties on them, and there will be music, shouting, laughing, yelling, etc. etc. etc..  These sounds of summer will bother many tenants and frustration will mount and the question will be:  What can you, as a tenant, do about the noise and parties caused by your neighbouring tenants?

The Residential Tenancies Act (RTA) is the law that governs the landlord and tenant relationship.  The RTA does not provide any direct right for one tenant to sue another tenant at the landlord and tenant board.  A tenant can not file a claim to have another tenant evicted from their home---regardless of how bothersome and annoying the actions of a tenant might be.  With respect to actions by your neighbours---there is nothing in the RTA that lets you bring direct action against that neighbour through any of the applications that the Landlord and Tenant Board will accept.

DO YOU JUST HAVE TO SUFFER?

While there is no direct right of action against a neighbour tenant, the RTA does provide you with some recourse and a way to deal with the problem caused by noisy neighbours.  The RTA contemplates that you deal with your complaints against neighbouring tenants by getting the Landlord to take action against the neighbours.

The RTA is structured in such a way that there are responsibilities imposed on tenants which includes not to substantially interfere with the resonable enjoyment of the premises by the landlord or other tenants.  When a neighbour disturbs you with noise, that neighbour is breaching the legal obligation to not disturb other tenants in the residential complex.   By complaining to the Landlord about the disturbance, the landlord is required to take action.  That action is first to investigate, collect evidence, and substantiate the allegations.  Then, the landlord may choose to speak with the offending tenant or alternatively decide to serve a Notice of Termination and if it is for noise it is likely a Form N5.  The offending tenant then must comply with the Notice of Termination or risk losing their apartment when the landlord applies for eviction to the Landlord and Tenant Board.

The foregoing is how it is supposed to work.  What drives many tenants crazy is that complaints to the landlord seem to fall on deaf ears.  Nothing seems to happen.  The landlord does not acknowledge the complaints or says that there is nothing he can do.  Meanwhile, the tenant who is hearing the noise suffers from sleepless nights, etc., from the rowdy and loud neighbour.

So, if the landlord does nothing, do you have a remedy?  In fact you do.  The RTA requires the landlord to provide you with quiet enjoyment of your premises.  This essentially means that it is the landlord's responsibility to make sure that you get the benefit of the apartment that you rented from him.  This means that the landlord is not allowed to simply ignore your complaints about noise.  The landlord must investigate, take steps, and seek to evict the offending tenant if no resolution can be reached.

If your landlord fails to take these steps, your landlord is breaching his legal obligations owed to you under the RTA.  This breach entitles you to file an application to the Landlord and Tenant Board against the landlord.  The basis of the application is that the landlord is failing to deal with a tenant who is making noise and who is disturbing you and who is therefore interfering with your quiet enjoyment of the premises.  To file such an application you would use form T2 which is available on the Landlord and Tenant Board website.

Of course, when you get to the point of being upset enough that you want to file and application---you should make sure that you are in the best position to win the application.  As you will be asking for money, an order that the landlord deal with the issues, maybe termination of your own tenancy so you can get out, or perhaps even a fine, it will be very important that you have the necessary evidence to win your case.  As you will be the "applicant" (i.e. the person who filed the application), you will have the burden of proof to establish that the landlord has breached his obligations to you.

WHAT KIND OF EVIDENCE SHOULD YOU HAVE?

At its heart, your application arises because you are being disturbed by your neighbours noise.  Hence, you need evidence of the noise.  By-law reports, police reports, statements by neighbours, photographs, video and audio recordings, calls to the landlord--all of these things and anything else you can think of that proves the nature of noise you are suffering will be important evidence to have.  It is important to have this evidence because you landlord could simply deny that there is a problem and say that there is no evidence that the other neighbour is doing anything wrong and that you are just whining or have some other unresolved issues.  Having evidence of the noise/disturbances takes this argument away from the landlord.

Once you have the evidence, you need proof that you complained to the landlord about the disturbances and that you did so regularly.  That proof is great in emails and faxes as proof of delivery of the complaints is easy to establish.  In communicating with the landlord provide the landlord with your evidence, explain what is happening and explain how it is affecting you.  Offer the landlord your assistance in dealing with the problem.  If the landlord fails to respond, write again, and again, and again.  Once you have written a reasonable number of times and have allowed a reasonable amount of time to pass, write one last letter to the landlord informing him that his failure to deal with your complaint is interfering with your reasonable enjoyment of the premises and that you intend to file an application to the Landlord and Tenant Board.  Wait a few days, and if there is still no response from the Landlord, file the application.

You will see in reviewing the T-2 Form that there are many different types of remedies that you can ask for.  What you demand will depend on your particular circumstances.

The hope is that the T-2 application will finally get the Landlord's attention and hopefully he will take steps to address the issue.  If not, the Board will fashion a remedy that should assist you in gettng the quiet enjoyment of your rental unit that you are legally entitled to have.

Michael K. E. Thiele\
Ottawalawyers.com 

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.