The Smart Apartment Advisor Show for Wed. Nov 30th
We’ve talked about evictions on the last few shows and now I’d like to dive a little deeper into the concept of “nuisance” as it relates to life in apartment buildings and whether it’s enough for someone to be evicted.
Sartre said, “Hell is other people.” Living in apartment buildings I think everyone gets a sense of that statement from time to time.
Annoying neighbors are people who do irritating things that don’t rise to the level of being considered a legal nuisance. A legal nuisance is something that interferes with the tenant or resident’s ability to quietly enjoy the property. An annoyance might be a crying baby that you can hear in your apartment. This can’t be avoided and it’s a fact of daily life. A nuisance would be someone playing their TV or music too loud at late hours (between 10PM and 8AM). This is completely avoidable. A baby crying isn’t avoidable.
Trivia Question: What is the name of the notice that a landlord serves to their tenant to notify them that they haven’t received the rent?
ANSWER: Three Day Notice to Pay Rent or Quit
- “Hell is other people” apartment living shows us that this can be true.
- Frequently, tenants who approach me with an annoying situation want some immediate solution and see eviction as a potential way to solve the problem. It is not.
- Annoying is isolated, not severe, not occurring during “quiet hours” or unavoidable.
- Baby crying is unavoidable. Dog barking is not. Sick person coughing loudly all night is unavoidable. Playing loud music at 1AM is not.
- Nuisance must be proven and even then you’re more likely to end up with some sort of agreement to stop than an eviction. Details that are considered in determining nuisance are:
- How avoidable is this disruption?
- How disruptive is the behavior?
- Duration -
- Frequency -
- Time of day -
- Severity -
- Individual circumstances - what might be a nuisance for one person might not rise to the level of nuisance for someone else. Practicing piano during the day could be a small disruption for a regular person but a nuisance for a neighbor who works the graveyard shift.
- Singing in the shower at 2AM is probably a nuisance if it happens repeatedly and after requests to stop. If it happens once at 2PM it’s just annoying.
- Timing is an interesting point, too. If a neighbor does something annoying during the day and the neighbor most affected by this is a graveyard shift worker the annoying behavior has a disparate impact on the affected tenant so an annoyance could rise to the point of being a nuisance.
- Documentation is key - how do you prove what’s going on? Call Police and get CAD number.
- Landlord’s duty to protect tenants from neighbors interfering with quiet enjoyment. Landlord must take some action to mediate or warn tenant.
- Recommended to ask questions first before assuming that a tenant’s report is accurate.
- Tenants also bear responsibility to take action on their own before involving the landlord. If a neighbor is inconvenienced once, it’s reasonable to expect him or her to discuss it directly with their neighbor before involving the landlord.
How about a few more nuanced situations? Neighbors yelling at each other and occasionally disturbing the neighbors occasionally might be considered simply annoying if it’s for a short period of time, not repeatedly taking place, and occurring during daytime hours (8AM-10PM). If it’s happening repeatedly, for an extended period of time, and after hours, then that would be considered a nuisance.
Pets are another source of nuisances. People who don’t control their animals are potentially the source of nuisances. A dog that barks sometimes is just annoying. A dog left alone in the apartment all day to bark and whine is a nuisance, especially if it occurs frequently after several warnings.
So what’s a nuisance? I looked up “nuisance” on Wikipedia and the legal definition is, "that which causes offence, annoyance, trouble or injury.” That’s not really specific enough for this conversation so to dig deeper:
"the interference with the right of specific people. Nuisance is one of the oldest causes of action known to the common law, with cases framed in nuisance going back almost to the beginning of recorded case law. Nuisance signifies that the "right of quiet enjoyment" is being disrupted to such a degree that a tort is being committed."
In property management it’s basically anything that one person does or fails to do and, as a result, disrupts another person or persons’ right to “quiet enjoyment” of their home. This can include noise, smells, behaviors, sights, etc.
The most common sources of nuisance tend to be noise related.
- One neighbor plays music too loud at all hours of the day and night and it prevents his or her neighbor from sleeping.
- One neighbor parks in his or her neighbor’s parking space all the time.
How to handle nuisances
If you have a situation that feels annoying but could turn into a nuisance, begin keeping records. XYZ behavior took place on this date, at this time, and persisted for X minutes. After several of these occurrences in a short period or of significant severity, then you get closer to nuisance behavior.
Noise problems like parties and loud music need to be documented. When they take place the person reporting the nuisance needs to call the police and report the problem to them. You need to collect a CAD number from them over the phone to make sure they have the report. When the officers arrive you have to meet with them and show them the problem and get confirmation that the problem is still going on. Gather enough of these in a short period of time (several weeks or months) and you’ll prove that the nuisance is significant and ongoing.
Nuisance also is established after repeated warnings and requests that go unheeded. If a neighbor sings loudly (and possibly poorly) in the shower every day before going to work that could be a nuisance after the neighbor affected by it reaches out and expresses their polite displeasure and receives an unpleasant response or the warning is unheeded then this progresses to becoming a nuisance.
Are You Kidding Me?!? Tenant with an aggressive pit bull that they claim to be a “comfort animal.”
Trivia Answer: Three Day Notice to Pay Rent or Quit.