Q. A handful of occupants have moved out due to noise disturbances from a neighboring unit. Should I disclose this to potential renters?
A. Yes, and in writing. When a landlord rents property to a tenant, there is always the implied promise that the property will be free of nuisances that might impact the tenant’s occupancy. This is known as the covenant of quiet enjoyment. If a condition at or around the premises is known to be causing a negative impact on the quiet enjoyment of its residents (i.e., a nuisance), the best practice is to disclose the nuisance in writing to all potential renters. However, whether a suspected nuisance amounts to a violation of the covenant of quiet enjoyment depends on several factors.
The most important factor is whether the nuisance originates from property owned by the landlord. If the landlord’s other tenants are causing a nuisance, and the landlord is not taking steps to stop the nuisance (e.g. eviction, mediation, etc.), then a tenant who moves into a unit and experiences the nuisance could make a claim against the landlord for violating the covenant of quiet enjoyment. This is because landlords have a duty to abate nuisances originating from their property, and the failure to do so means that the landlord is responsible, at least in part, for the nuisance.
If the nuisance originates from a neighboring property, then the landlord may not be liable for the nuisance. For instance, if a neighboring house plays its music loudly, the landlord could not evict the occupants to stop the nuisance, only sue in court for damages or an injunction, or call the police for the disturbance of the peace. But unlike in the previous case, the tenants would have the same remedies available – they could also call the police or sue their neighbors. Because the tenants have the same legal remedies as the landlord against the neighbors, it is unlikely that the tenants will be able to hold their landlord liable for something they could have done themselves.
If the rental unit was next to noisy rail tracks, the noise of the trains is simply a condition of the rental property. Certainly, the landlord should take reasonable steps to dampen the sound, but nothing will change the fact that the rental unit is next to rail tracks. A certain amount of noise and vibration is inevitable in that situation, and the landlord would not be liable for it, especially if the tenant was aware of it before renting the property.
So why should a landlord disclose a nuisance that the landlord is not responsible for? For the practical reason to avoid the logistics and potential conflict surrounding repeated turnover in the affected unit. If a unit is known to be in a noisy area, a sensitive tenant should be warned away from renting it so that a less sensitive tenant can move in instead. And if the nuisance is in one of the landlord’s other rental units, it helps avoid the accusation that the landlord was acting in bad faith by renting a unit when the landlord already knew they could not deliver on the covenant of quiet enjoyment.
Many landlords will not rent a unit near a noisy neighbor even with a disclosure because they do not want to subject a new tenant to a known nuisance. If the nuisance is coming from another property, the landlord may indeed have an action for damages for the reduced value of their own property caused by that nuisance (e.g. lost rental value). Those landlords should be aware that unless they attempt to rent the property they will have difficulty quantifying their damages, either by showing how long the unit went unoccupied, or by how much lower they had to set the rent to fill it.
Even if a landlord can rent a unit with a nuisance neighbor nearby, landlords should not rest on their laurels. Follow-through with a plan to abate the nuisance, either by evicting the source of the nuisance, or pressuring the neighbor. Show the tenant that you are fighting for them, avoid the claim that the landlord is responsible for the breach of quiet enjoyment, and put the blame where it belongs: on the nuisance itself.
© 2019 by Fried & Williams LLP. All Rights Reserved. The information contained in this article is general in nature. For advice on any particular matter, please consult with our attorneys because the facts of your situation may be unique and the law changes from time to time