Noise complaints are one of the most difficult and frustrating issues for landlords to deal with. This is because noise complaints are often subjective (as gauged by the tenant who finds the noise unacceptable), transient (not constantly occurring such that the noise issue can be evidenced), or beyond the landlord’s control.
Landlords can’t ignore tenant noise complaints. One of the principles in providing housing accommodation is the grant of peace and quiet enjoyment of the unit to the tenant. If a peace and quiet enjoyment term is not set out explicitly within the tenancy agreement, then it would be imposed implicitly by the law. Failure to provide peace and quiet enjoyment may entitle a tenant to an abatement of rent.
Noise complaints are always subjective. That is, one tenant might find a unit to be entirely acceptable while another might be more sensitive to noise or odors and find the unit to be unacceptable. A tenant making a legal claim for undue noise would do so in nuisance. Nuisance is an unreasonable interference with land caused by an incursion from adjacent land. Accordingly, nuisance covers noise, odors, vibration and other intangibles that escape from one property to another. To complicate matters, nuisance can be found even when the noise emanating from the offending unit does not violate local bylaws or if the unit is otherwise being used in a reasonable manner. So it is dangerous to simply dismiss complaints made because the noise from the offending unit is not breaking any local bylaws. What the law requires is that the activity complained of must be objectively unreasonable in order to constitute an actionable nuisance (Suzuki v. Monroe 2009 BCSC 1403). Objective evidence is often provided by acoustic engineers.
It is not practical or economical for landlords to retain acoustic engineers for every noise complaint. The reality is that it will be the landlord doing the initial investigating and making its own findings on noise issues.
Noise complaints are easier to deal with when the landlord has control over the subject matter. For instance, a tenant might complain that sounds from the underground parkade near the unit are too noisy and interfering with the tenant’s peace and quiet enjoyment of their unit. The landlord can investigate the mechanical systems and see if anything can be done to either deaden the noise or to shut the fans down when they are not needed.
The situation becomes more difficult when the landlord has no control over the subject matter of the complaint. This most often happens when there is a dispute between tenants over noise. The landlord will have an obligation to investigate noise complaints to see if the complaints can be substantiated. Herein lies the problem with the transient nature of noise complaints. In some cases, the landlord will be so lucky as to be present when the “offending” tenant is causing a noise disturbance. In that case, the landlord will be able to decide for themselves whether the noise complaint is substantiated and take appropriate action, including warning the tenant to discontinue the behavior or face the termination of their tenancy agreement.
In most cases, the landlord is not so lucky. In most cases, the noise complaints will be utterly unsubstantiated and the landlord is left wondering whether the noise complaints are real and if they are real, whether the person lodging the complaint is simply overly-sensitive and if the person who is allegedly making too much noise is in fact using their unit in a reasonable fashion. As a result, the landlord may feel that their hands are tied because it is unable to come to a decision regarding the validity of the complaints.
The landlord has to look at all the circumstances to determine if the noise is unreasonable. Noise that is unreasonable in a suburban setting might be reasonable in properties located in the downtown core. Other things to look at include that nature of the noise complained of, the nature of the injury to the complaining tenant, the frequency of the occurrence and its duration. The interference must be substantial and serious and as noted above, the standard is that of an ordinary reasonable person, not an overly sensitive one.
The landlord may choose to decide for one tenant or another. After looking at the circumstances, the landlord may warn the offending party to cease and desist or face termination or tell the complaining party that the landlord considers the matter closed, having found no unreasonable noise issues.
There are options for the landlord if the landlord is uncomfortable or unable to render a decision on the noise issue:
- The landlord could facilitate mediation between the parties. The landlord might seek the services of an outside facilitator to provide a third party mediator to bring the two tenants together to see if there is some middle ground. For instance, if the playing of a piano is the subject matter of a noise complaint, then perhaps the parties can decide on specific times when the piano might be played;
- It might be possible to move the parties away from each other. Rental vacancies may provide an opportunity to move one of the parties to a different part of the building so as to alleviate the noise complaints. This can be especially effective if the person making the complaint is overly-sensitive. There would have to be agreement from the tenant to move to a different unit.
The landlord should recognize that some tenants may feel themselves so aggrieved by the situation that they feel compelled to take legal action. Options available to a tenant include:
- Alleging breach of contract as between the tenant and landlord. As noted above, there will be an explicit or implicit contractual obligation to provide the tenant with peace and quiet enjoyment of the tenant’s unit. The tenant may seek a declaration that the landlord has breached the contract and may seek an abatement of rent as the landlord has failed to provide peace and quiet enjoyment;
- The tenant may sue in nuisance. The tenant could sue the landlord and the person causing the nuisance for damages; and
- Human rights claims are available to both the person complaining and the person allegedly causing the noise disturbance. For instance, one tenant might complain that the neighbor’s children are making too much noise. The possibility exists that the person allegedly causing the noise disturbance would launch a human rights complaint based on family composition or family status. The person making the complaint might allege some medical condition that requires quiet and thus claim discrimination based on medical disability.
As can be seen, there are a number of possibilities that might arise from a simple noise complaint. The landlord has the ability to make a difference by bringing the parties together in mediation or by working out some other solution thus avoiding the possibility of proceedings before the Residential Tenancy Branch, the court or the human rights tribunal.
Published online on July 24, 2016.