Noise and apartment

Noise and apartment

Frequently, tenants will complain to their landlords about the noise made by a neighbour and the fact that they are not enjoying the peace of the property. In such a situation, what are the obligations for the landlord and for the tenants?

The landlord, in accordance with article 1854 C.C.Q., must provide the peaceable enjoyment of the premises to his tenants.

“1854. The lessor is bound to deliver the leased property to the lessee in a good state of repair in all respects and to provide him with peaceable enjoyment of the property throughout the term of the lease.

He is also bound to warrant the lessee that the property may be used for the purpose for which it was leased and to maintain the property for that purpose throughout the term of the lease.”

The tenant pretending not to be provided with the peaceable enjoyment of property will be able to, after having put the landlord in default to settle the situation, make a demand against the latter for a diminution of the rent and/or damages.

When it is a third person, not from the same property and not under the landlord’s control, who is causing the disturbance, the tenant will retain his recourse for a diminution of rent, but not one for damages as stated in article 1859 C.C.Q.:

“1859. The lessor is not liable for damage resulting from the disturbance of enjoyment of the property by act of a third person; he may be so liable where the third person is also a lessee of that property or is a person whom the lessee allows to use or have access to the property.

If the enjoyment of the property is diminished by the disturbance, however, the lessee retains his other remedies against the lessor.”

The obligation to provide the peaceable enjoyment of the property stated in article 1854 C.C.Q. is one of result. Therefore, for the landlord’s liability to be presumed, one only has to establish the disturbance or the damage suffered by the tenant. To be relieved of liability, the landlord will have to prove, upon a preponderance of evidence (50% + 1), a superior force or the act of the victim.

For example, in Marie-Marthe Jean et als. c. 9059-0357 Québec Inc.(1) three tenants obtained a 35 % diminution of rent following a disturbance caused by another tenant who was doing drug trafficking in his apartment and who was showing aggressiveness towards them. In this case, the landlord had made a demand for the resiliation of the lease of the tenant at fault, but without mentioning the urgency of the situation so that the tenant disturbing the peaceable enjoyement of the property moved out of the apartment before a date for the audition could be fixed.

However, since the landlord had been acting with prudence and diligence by making a demand at the Régie du logement against the tenant at fault, he was not condemned to pay damages, that is, in application of article 1861 C.C.Q. which states :

“1861. A lessee who is disturbed by another lessee or by persons whom another lessee allows to use or to have access to the property may obtain, according to the circumstances, a reduction of rent or the resiliation of the lease, if he notified the common lessor of the disturbance and if the disturbance persists.

He may also recover damages from the common lessor unless the lessor proves that he acted with prudence and diligence; the lessor has a recourse against the lessee at fault for compensation for the injury suffered by him.”

In accordance with article 1860 of the Civil Code of Quebec, the tenant or the persons he allows to use or to have access to the property must not “disturb the normal enjoyment of the other lessees.”

When the landlord concludes that one of his tenants does not honour his obligation of not disturbing the normal enjoyment of the other tenants, after having notified him, he can make a demand for the resiliation of the lease.

To do so, as stated in Lacasse c. Picard (2) :

“[TRANSLATION] The landlords will have to prove that the tenants or the persons under their care or who they allow to have access to the apartment have had, over a certain period, behaviours and attitudes which, by their frequency and persistency, seriously irritate, infuriate or bother the other tenants of the building, thus disturbing the peaceable enjoyment of property which they are entitled to.”

The Court will use objective criteria to analyse the tenant’s behaviour and to decide if the situation lived by the tenants or the landlord living in the building is serious, excessive or unreasonable and if it would justify the resiliation of the lease. That is, in comparison to the normal neighbourhood annoyances everyone must suffer.

Every case is unique and will be analysed separately.

The landlord making a demand for the resiliation of the lease will have to prove upon a preponderance of evidence the serious violation to his rights.

(1) (R.L.) 31 060313 020 G, 31 060313 021 G et 31 060314 011 G, le 26 mai 2009
(2) (R.L.) 18-890911-014 G, r. Me Gérald Bernard

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