The covenant of quiet enjoyment is a promise to residents that you, as the landlord, will protect the residents’ right to undisturbed use of the rental property. A nuisance is anything that a reasonable person would consider to be offensive or seriously annoying, in violation of the covenant of quiet enjoyment, including the following:
Foul odors
Intrusive neighbors (or landlords)
Loud noise or music
Solicitors
Smoke, particularly tobacco and marijuana smoke
Vibrations from nearby machinery
You have an obligation to your residents to prevent nuisances and eliminate any nuisances that you become aware of. If a resident informs you of a nuisance and you fail to take action to correct the situation, the resident may take legal action against the person causing the nuisance, against you, or against both of you.
If a resident reports a nuisance or you become aware of it on your own, respond quickly by taking the following steps:
Investigate the alleged nuisance to determine if you consider it annoying or offensive.
Any investigation or report from law enforcement or an impartial governmental agency or even a neutral tenant can also be helpful in understanding and documenting the nuisance.
If the nuisance is between residents, encourage them to settle their differences themselves.
If they can, skip to the last step.
If possible, contact the source of the nuisance in person, inform him about the problem, and instruct him on what to do to correct his actions or the situation.
If the nuisance continues, deliver a warning letter to the source of the nuisance informing him of the problem and letting him know the corrective action he must take immediately.
If the nuisance still continues, file for an injunction to make the person stop the action or correct the nuisance situation.
An injunction is a court order requiring an individual to take specific action to minimize the negative effect of his conduct on the plaintiff, up to and including an outright prohibition on the negative action.
The courts use this extraordinary remedy in special cases when monetary damages can’t compensate the violation of the plaintiff's property rights. The nuisance must be substantial and continuous. Failure to comply with a notice of an injunction is punishable by being held in contempt of court.
If the injunction fails to have the desired effect, and a resident is the source of the nuisance, you may need to evict the resident.
Write a letter to the resident who complained of the nuisance thanking him for reporting it and informing them that you took appropriate action to eliminate the nuisance and the outcome.
Keep a copy for the resident files.
Dealing with smoking
Some states now include tobacco smoke in their statutes, defining it as a private nuisance. Utah, for example, defines secondhand smoke as a nuisance if it infiltrates any residential unit more than once a week for at least two consecutive weeks and interferes with the neighbor’s “comfortable enjoyment of life or property.”
Unless the affected neighbor waives the right to sue for the smoking nuisance, he may sue the smoker directly and may also sue the landlord if the smoker is a renter. And in California, the state’s Air Resources Board considers secondhand smoke to be a “toxic contaminant.”
Secondhand smoke is increasingly a subject of nuisance complaints. Until recently, if apartment residents suffered from their neighbors’ cigarette smoke, moving out was the only option. The situation is changing, however, and nonsmokers are beginning to exercise their legal rights. Take any complaints seriously or you could be named in a lawsuit.
To reduce public nuisance claims based on tobacco smoking, establish your rental property as a nonsmoking facility. Tobacco smokers aren’t members of a protected class; that is, the Fair Housing Act doesn’t prohibit discrimination against smokers, but focus on the activity rather than the person. You may even consider including your property’s nonsmoking status in your advertising.
Dealing with excessive noise on a state and local level
Regardless of whether your state or local municipality has specific noise ordinances, take seriously any complaints from residents about excessive noise. You’re still responsible, as landlord, to help protect your residents’ right to quiet enjoyment of their property. However, any noise ordinances give you and your residents more legal ammunition in the fight against excessively loud sounds.
California, New Jersey, and other states and local municipalities have taken action to fix the problem of excessive noise in residential areas, including apartment buildings. The California Noise Control Act recognizes that levels of noise can impact health and well-being.
The Act, which became effective in 1973, gave cities and communities the power to establish noise ordinances and enforce them, in order to “prohibit unnecessary, annoying intrusive or dangerous noise.” In response, city ordinances often restrict loud sounds that may be heard through common walls, ceilings, or floors.