When One Renter's Everyday Living Destroys Another's 'Quiet Enjoyment'

By Robert Griswold, Steven R. Kellman and James McKinley
Saturday, January 13, 2007

Q: For eight years I have lived in a five-unit apartment building that has thin walls. The neighbor's living area -- kitchen and dining room -- shares a common wall with my office, which is next to my bedroom. A couple with a 4-year-old child moved in to this unit at the beginning of the year. The husband works odd hours and the noise from them just walking around as well as preparing meals has been waking me up at 10 p.m. or 11 p.m. Sometimes meals are after midnight. Last night I received all of those wake-up calls in addition to loud noise from their unit at 2:30 a.m. and 3:30 a.m. I have mentioned the noise to them a couple of times but to no avail. Past tenants and I have been able to work out the noise problem, but they seem to feel that they can do as they please at any hour. What rights as a tenant do I have when it comes to noise?

A: James McKinley, a lawyer for landlords, replies:

Noise is always an issue when people live close to each other, especially in older buildings.

Once a tenant takes possession of the premises, he or she is entitled to peaceful possession of those premises. The implied covenant of quiet enjoyment prevents the landlord from disturbing your possession of the premises.

In addition, a landlord's failure to curb a tenant's disruptive or abusive conduct might be found to be a breach of the covenant of quiet enjoyment. In such a case, eviction of a troublesome or nuisance tenant is the best way to protect the other tenant's right to quiet enjoyment of the premises.

However, in this case, it doesn't sound as if your neighbors are intentionally trying to be disruptive or abusive. Because you were unable to work out this problem with your neighbors, you should discuss the problem with your landlord.

Most properties have quiet hours before 8 a.m. and after 10 p.m. Your landlord should enforce these rules. It is unreasonable for you to be awakened at midnight, 2:30 a.m. and 3:30 a.m. If your neighbors are fighting, having parties or listening to loud music, the landlord needs to warn them and evict them if the problems persist.

However, your neighbors also have the right to quiet enjoyment of their premises. If they are waking you up by simply walking around in the middle of the night, they aren't doing anything wrong. In that case, you should ask your landlord to add soundproofing materials to the shared wall. You have been a tenant a long time, and your landlord might be willing to do this. If your landlord is unwilling, you always have the option of giving notice and moving, or investing in a set of earplugs.

Steven R. Kellman, a lawyer for tenants, replies:

The right to a quiet and peaceful rental can easily collide with a neighbor's right to do innocent protected acts that make noise.

For example, singing in the shower, running a juicer, watching television, having peaceful but slightly heated arguments and caring for children are all lawful activities that make noise. This "normal" noise must generally be tolerated in multi-unit housing.

Neighbors can, however, make too much noise or make enough noise that it might be considered excessive for the time of day. When this happens, the line may be crossed where the noisemaking needs to be limited to some degree.

In your case, the noise isn't necessarily excessive but occurs at those sensitive hours (i.e. late evening and very early morning hours). As James points out, the neighboring tenants need to take extra care with their normal activities that generate the kind of noise that may be much more noticeable at those hours. His ideas of enforcing quiet hours, using noise-suppressing devices such as earplugs and adding insulation are all viable options.

The best option will always be common courtesy and cooperation. Again, in multifamily dwellings, this is necessary, as the tradeoff for lower rent is the acceptance of close living. Those tenants unwilling to make the necessary compromises really need to think about relocating to a single-family dwelling where they will pay for the ability to generate more noise or live in a quieter place.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold and San Diego lawyers Steven R. Kellman, director of the Tenants Legal Center, and James McKinley, member of the Moffitt & Associates law firm, which represents landlords. E-mail your questions to Griswold at rgriswold.inman@retodayradio.com.Questions should be brief and cannot be answered individually.

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