Quiet Enjoyment and Constructive Eviction
Unless a lease provides otherwise, there is an implied covenant or warranty by the landlord that the tenant is entitled to "quiet enjoyment" of the premises. The Maryland Court of Special Appeals has held that even where the disruption to tenant's quiet enjoyment is caused not by the landlord but by another tenant, the disruption may be attributable to the landlord because the landlord could take action (such as notification and, if necessary, eviction) against the offending tenant.
When the landlord fails to correct or terminate the disturbance, and the disturbance seriously interferes with the tenant's use and enjoyment of the leased premises, the tenant is justified in abandoning the premises. Tenant who leaves under these conditions will have no further obligation to pay rent. In the eyes of the law, the landlord has breached the covenant of quiet enjoyment and has "constructively evicted" the tenant. According to Black’s Law Dictionary, constructive eviction means “a landlord’s act of making premises unfit for occupancy, often with the result that the tenant is compelled to leave.” Landlord may be required to compensate tenant for moving expenses, attorney's fees, and other expenses resulting from the constructive eviction. (The Court of Special Appeals case is Bocchini v. Gorn Management Co., 69 Md. App.1 (1986).)
NOTE: The facts in Bocchini v. Gorn, mentioned above, were that the landlord knew about the problem and failed to take action against a tenant who persisted over a period of several months in making very disturbing noises and also threatened the complaining tenant after she asked him to modify his behavior and after she asked the landlord for help. The court stated that these facts constituted a breach of the covenant of quiet enjoyment and supported the tenant's claim that she had been constructively evicted.
A tenant who finds that his use and enjoyment of the premises are seriously impaired by the landlord or by another tenant, should communicate the problem to the landlord in writing, give the landlord reasonable opportunity to resolve the situation, and have witnesses to the situation, if possible.
If all efforts fail, if the disturbance persists and tenant decides to move out before the end of the lease term, there is still a risk to tenant that the landlord will file suit for loss of the rent due for the remainder of the lease term. For tenant to prevail, tenant will need to prove to the court that the disturbance was substantial enough to constitute "constructive eviction." The following have been found adequate to support a claim of constructive eviction in other states: failures to furnish heat, elevator service, and necessary electricity (Charles. E. Burt, Inc. v. Seven Grand Corp., 340 Mass. 124, 163 N.E.2d 4 (1959)); failure to furnish sanitary restroom facilities (Thirteenth and Washington Sts. Corp. v. Nelson, 123 Utah 70, 254 P.2d 847 (1953)); and frequent flooding of the premises because of the landlord's fault (Reste Realty Corp. v. Cooper, 53 N.J. 444, 251 A.2d 268 (1969)).
Since the case law indicates that a landlord may only be liable for breach of the covenant of quiet enjoyment and/or constructive eviction if he had notice of the disturbance or issue, a tenant should be sure to notify the landlord of the problem, preferably in writing.
Noise creates more ugly confrontations between tenants than any other issue. Many times the situation deteriorates into conflict: constant complaints and angry denials; pounding on the ceiling or stomping on the floor; calls to the police followed by louder noise when the police have gone; other retaliation in one form or another, even to the extent of slashing tires!
Many tenants who are complained against feel that they are being harassed by someone who is unreasonable and overly sensitive to sound. Other tenants state that their life is absolutely miserable due to excessive noise by another tenant.
Points to consider on both sides of the question:
- Before renting, go to the complex on a weekend and talk to the tenants living there as to how well the apartments are sound proofed and how responsive is management to noise complaints. Management has the responsibility to assure quiet enjoyment of the premises.
- If you have a good relationship with the tenants causing the noise, you may want to try, in a diplomatic way, to resolve the situation by calling or going to the noisy tenants, before going to management. Don’t express anger. Don’t threaten. The offending tenants may not be aware of how noisy they are.
- Be considerate of others. Be careful about noise. Though you pay rent and have a right to enjoy your apartment, you have chosen a style of living--an apartment rather than a detached house--that calls for rules of conduct appropriate to living closely with other people. Accept complaints in a positive way. Be aware that hostility breeds hostility and once the conflict begins, there is no telling where it will end.
- If sensitive to noise, consider renting on the top floor.
- If you have lively children, try to rent a ground floor apartment.
- Be sure you adequately cover the floors with rugs. Even if you have wall to wall carpeting, additional rugs can help.
- For late hour listening to TV, radio, CD player, use earphones. They produce excellent sound and there are even cordless earphones.
- One tenant told me that the occasional use of earplugs worked wonders for her!
- Try to be tolerant of a once in a while weekend party that may be a bit loud.
If it is necessary to complain to management, do it in writing and keep a copy of your complaint. Be sure you know where the noise originates. Be very specific as to the type of noise and its time and extent. Talk to other tenants to see if they are disturbed. It is always more effective to have several people complaining. If necessary try to have a friend, as a witness, stay over at times when there is likely to be noise. Be aware that management has to be fair and many times is caught in the middle of conflicting claims and charges that are not easy to resolve.
If all else fails, consider requesting a transfer to another apartment even if it is inconvenient and costs money. Peace of mind and being able to remove yourself from a very negative situation makes the effort worthwhile.
As a last resort, if you have notified the landlord of the noise, and after reasonable time he has not corrected the problem, you may remain in your apartment and sue the landlord for breach of the covenant of quiet enjoyment or you may move and sue the landlord for constructive eviction. It is strongly suggested that you seek legal counsel before embarking on this course of action.