My girlfriend and I live in an apartment complex (in Columbus, OH should it become relevant) consisting of multiple buildings with 12 apartments each. Somehow, we ended up in the building with what seems to be the only large number of children living in it.
While this wouldn’t otherwise be a problem, the fact is that these kids are loud. Really loud. All day loud. And my girlfriend works a third shift job. It’s gotten to the point that she hasn’t been able to get enough good sleep that it is affecting her work performance (not to mention quality of life otherwise).
No polite requests of the residents – kids or parents – has resulted in anything more than a momentary decrease in the noise levels. They seem determined to play, loudly, right in the yard around this building. We plan to go to the apartment management to see what they are willing to do, but I don’t personally hold out much hope for that.
What I was wondering is what, if any, leg do we have to stand on in dealing with the apartment folks? Can we, for instance, bring to bear a right to quiet enjoyment of our property without nuisance noise??
Yes, I realize you’re not my lawyer, I’m not your client, and any real legal advice would need to be obtained from a lawyer in my area. I’m just looking for some general thoughts here.
In most states, as long as they are not violating the noise ordinances or going past the times imposed, (which is usually 9pm weeknights and 10pm weekends) they are within their legal rights.
I had the exact same problem and asking the neighbors to keep it down:
a.) Never worked
b.) Only created tension between us and the neighbors.
Only I lived in a basement apartment and they had the upper floor. Two girls aged 8 and 11. They fought ALL THE TIME, screaming, yelling and this shit went on well into late night. We had a brand new baby too. I was in misery. We had to move out, breaking the lease. that may be the only choice.
Several, even most, of them do. There are, however, a few that are under school age or are on different kindergarten schedules or something, and they are often out in the yard screaming and carrying on.
In general, the landlord has no liability for acts of other tenants. Restatement (Second) of Property (Landlord and Tenant) §6.1 (1977). See also International Commission on English in the Liturgy v. Schwartz, 573 A.2d 1303 (D.C. 1990) (applying the Restatement rule). But see Blackett v. Olanoff, 358 N.E.2d 817 (Mass. 1976) (finding constructive eviction to be a valid defense to a landlord’s claim for back rent, where the landlord rented out the lower floor to a loud nightclub). At the very best, you could have a valid defense for breaking your lease, but the odds are not good.
If you had any cause of action at all, it would be against the neighbor for nuisance. A nuisance is “a substantial and unreasonable interference with the use or enjoyment of land.” Schneider Natl. Carriers, Inc. v. Bates 147 S.W.3d 264, 269 (Tex. 2004). So your neighbors’ noise has to be “substantial and unreasonable,” which is a fairly high bar to clear. In addition, they will claim that your SO’s unusual sleeping schedule makes her a “hypersensitive plaintiff,” which is a valid defense to a nuisance claim. See Page County Appliance Center, Inc. v. Honeywell, Inc. 347 N.W.2d 171 (Iowa 1984) (“The plaintiff cannot, by devoting his own land to an unusually sensitive use, make a nuisance out of conduct of the adjoining defendant which would otherwise be harmless.”).
Of course, these are both pretty adversarial remedies. The best thing to do would probably be to engage in some diplomacy. But it looks like you’re already trying that.
Check your noise ordinance though (the OP I mean). In my city, for example, it’s in effect 24 hours a day.
From my city’s code “(1) [LOUD, DISTURBING OR UNNECESSARY SOUNDS OR NOISES.] No person shall make or cause to be made any loud, disturbing or unnecessary sounds or noises as may tend to annoy or disturb a person of ordinary sensibilities in or about any public street, alley or park or any private residence.”
As one cop put it, if you can hear it, it’s too loud.
Something else to do would be to research ‘quiet enjoyment.’ I’m not sure it covers kids making noises (since that’s what they do), but tossing that term around, especially if you can put it in context with something in your lease agreement at least lets the landlord know that you’ve done some homework.
Two other things, first, if possible, get you landlord to come over and observe the noise for him/herself, second, if other neighbors are annoyed by this, ask them to complain as well. Power in numbers and all that.
I don’t think it is as clear-cut as Randy Seltzer suggests.
Comment D of the Restatement of Property notes, “The conduct of a third person outside of the leased property that is performed on property in which the landlord has an interest, which conduct could be legally controlled by him, is attributable to the landlord for the purposes of applying the rule of this section.” Restatement (Second) of Property (Landlord and Tenant) §6.1, Comment D (1977). See e.g.Phyfe v. Dale, 130 N.Y.S. 231 (Sup. Ct. App. 1911) (“The actions which the landlord permitted to take place in the elevators and halls constituted a common nuisance which the landlord had the complete power to abate. His failure to do so justified the defendant in vacating the premises [. . . .] The actions complained of, in so far as they were committed in that part of the premises which were under the control of the landlord, constituted a constructive eviction.”)
The comment offers the following illustration: “L leases an apartment to T. L retains control over the halls and other common areas of the apartment building. Other tenants in the building and their guests use the common areas in a noisy, boisterous and disturbing manner. L fails to stop this conduct after being requested to do so by T on several occasions. The conduct of those third persons is attributable to L for the purposes of applying the rule of this section.”
That’s pretty darn close to your situation, isn’t it? There is some contrary authority, so you’d need to know the law in Ohio (and talk to a lawyer), but I don’t think it’s obvious from the Restatement that you’d have no claim. Quite the opposite, in fact. (Though, unlike RS, IANAL.)
The obvious thing to say is that this, uh, isn’t your property.
What do you want the kids to do? Play in the streets? Playing in the yard around their building is what kids do. And in their mind they have as much right to use the space as you have to have quiet- especially during daylight hours.
You are probably going to have to suck this one up. I’ve had luck using a fan for white noise (just point it to the wall when you don’t want the breeze). I’ve also found it’s easy to fall asleep to talk radio- streaming NPR has been my latest bedtime companion. Earplugs work great for some people, as does the old pillow-over-the-ear.
And most importantly is to resolve not to get worked up about it. To some degree things like this bother you as much as you let them. I’ve been in loud situations and figured out eventually that what kept me up wasn’t the noise, but rather me getting all angry and resentful.
I recommend against toying around with this unless you want to get a lawyer involved. While the doctrine of quiet enjoyment does contain the word “quiet,” it’s a term of art that applies in specific circumstances, most of which have nothing to do with noise. In a nutshell, it’s an implied guarantee that you can use your land without unreasonable interference from the landlord. In order to invoke it, the landlord has to be doing something wrong, or at least negligent. As noted above, it’s not always that easy to prove any wrongdoing on the landlord’s part. (More below.)
Woah there; I’m not a lawyer. (Though I play one in class.) I probably should have said as much. I also hope I didn’t give the impression that the issue is clear-cut. As you note, the law in this area is highly fact-dependent, and totally jurisdictional.
I am suggesting that the OP will have a difficult time proving a breach of lease based on obnoxious noises emanating from the neighbor’s apartment. The key language from the Restatement (which I should note for the uninitiated, is not binding law, but a persuasive authority that many courts will follow) is whether the conduct can be “legally controlled” by the landlord. If the bulk of the complaint comes from playing in the yard, then yes, there’s a good chance a court would say the landlord can control that. But if the bulk of the complaint is regarding noise from the neighbor’s apartment, then the OP is unlikely to prevail. And on top of all of that, if the OP sued on this theory and won, the remedy would be that the lease would be terminated without penalty to the tenant. No court is going to issue an injunction that the landlord has to keep the children quiet.
Again, I would emphasize that this solution would involve taking the landlord to court. And if it comes to that, I imagine that moving out would become a more attractive option.
I don’t disagree with anything you subsequently posted, with one exception. Even if moving were the only remedy, the ability to get out of the lease might be useful to the OP. It doesn’t necessarily mean going to court. The burden would be on the landlord to try to get a judgment for the remaining rent, no? A landlord would be unlikely to go to the effort if he thought he would lose in court.
How long has this been going on? I know when I first moved into my apartment I was distracted by the bus route that goes by my place but after a couple of days I didn’t hear it any longer. If this is a couple of weeks old or more and you still aren’t used to it then I would suggest ear plugs. It is part of working a third shift job that the people around you won’t share your schedule unfortunately and that means more noise. Other than that I don’t think there is much you can do about it.
Actually, for a whole range of legal purposes, it IS his property.
Sure, the landlord owns it, and the OP is a renter, but the act of renting effectively transfers certain property rights to the renter, to the extent that talking about “quiet enjoyment of [his] property” is perfectly reasonable.
There are a bunch of areas where the law considers the property to be his. For example, despite being the owner of the property, the landlord has no authority to grant permission to the police to enter or search the OP’s apartment. Absent a warrant or exigent circumstances, that permission can only come from the occupant. The landlord himself or herself cannot enter the property, except under certain specified circumstances, despite being the owner. Again, the law recognizes the OP as having legal authority over the property.
Before breaking the lease, and fighting in court with the landlord about rent for the remainder of the lease, etc., consider that in “an apartment complex of multiple buildings with 12 apartments each”, there are bound to be vacant apartments in other locations that do not have noisy children playing just outside. Ask your landlord if you can move to another apartment in a quieter part of the complex instead of moving out completely.
A landlord would much rather do this than go through the hassle of fighting you in court about a broken lease.