What goes around comes around

Article locked Published on by Me Robert Soucy

Topic(s): Legal

The tenant requests termination of the lease. By amendment he claims a sum of $1,500 for overpayment, material damage of $12,618.47, moral damage of $12,000, and a decrease in rent of $3,500 for the period from 31 March 2012 to 12 January 2013, the date of his departure from the housing. On July 31, 2013, the landlord is claiming an amount of $6,784.25 in damages with interest.

The facts

The tenant was bound by a lease from 1 March 2012 to 30 June 2015, at a monthly rent of $1,500. The tenant has left the premises during the lease, i.e. on 13 January 2013. The tenant occupied the lower portion of a duplex, including the basement and the garage.

The second floor is rented to a family. Initially, there were three children, but, following a tragic event which occurred before the departure of the tenant from his housing, the oldest, aged 22, sadly passed away. At the time of the hearing, on March 12, 2015, the family still occupies the housing, and this has been the case for the last eight years.

The tenant had rented the housing after living 40 years in a bungalow in Lachenaie. The tenant explains that he rented the premises for a long period of time in order to settle there and also to make it his place of work at home, hence the lease of nearly three years. The tenant stated that he was aware of the work which had to be done. Being good with his hands, it was agreed upon that some of the work would be done by himself and that the landlord would provide the materials. The lease stating that the tenant agreed to provide manpower for the work performed in the basement and that the owner agreed to provide the required materials.

The evidence of the tenant

At the hearing, the tenant alleges that they had to leave the premises after 10 months, due to the noise caused by the occupants on the second floor. The situation exacerbated the health of his wife, who needed a lot of rest because of cancer and then a thyroid surgery. The tenant testified that the noise began as soon as he moved into the housing, and this until his departure from the dwelling on January 13, 2013.

He describes the noise made by continuing comings and goings, of racing down the stairs, even in the wee hours, video game sounds, of children weeping, the movements of the tenant because of her weight, the sounds of her doing the household chores, of her laundry, the loud music, the presence of guests, etc.

The tenant demonstrates having fabricated an object, a kind of telescopic stick with a spring in it to hit the ceiling. The noise caused by this could be described as a shotgun blast. He admits having used it twice. Another point, the tenant stresses that the works done in the basement, which had to be minor, have become significant achievements.

As for the damages claimed, the tenant admits it concerns amounts which he did not expect to claim from the landlords because they were meant to improve the premises to his advantage, for his needs. However, because he had to leave the premises hastily, he could not enjoy them. The tenant also admits that the work done in the garage, the replacement of the kitchen door, the new shelves in the closets, the construction of a terrace, insulating the garage door, electricity, were done without giving notice of this whatsoever to the landlords.

The defence of the landlords

In defence, the landlords confront the request of the tenant. They deny the allegations of excessive noise and the damages claimed. The dwelling had been freshly painted but the tenant wanted to repaint it to his liking.

Regarding the basement, the landlord had found a defect. The work was valued at $5,000. When starting the work, there were surprises, notably cracks in the concrete. And so, a minor project turned into a major one. An amount of $35,000.00 was invested. Work began on February 18, 2012 and was completed in mid-March 2012. The ground floor was completed on March 1, 2012. According to the landlords, the tenant even took care of performing various tasks without any request or authorization.

Moreover, the landlords report that the tenant was racist. He spoke of the occupants as being “immigrants”, her being the “fat cow,” in addition to being aggressive.

The new tenant who has been occupying the former housing of the tenant-plaintiff since May 31, 2013 has testified. He never had to complain about the tenants above him. He knows they are Spanish and they greet each other. He admits hearing people walk and run, and, on occasion, he hears music, but nothing unusual.

The tenant from the upper floor of the duplex testified that two weeks after the arrival of the lower-floor tenant, the latter advised him to buy slippers to avoid making noise. He added that his wife has a big family in Canada and that they used to get together on occasion. Because of the tenant’s complaints, two or three months after his arrival, they stopped the family gatherings that took place during the day. They turned the TV off at an earlier hour, they ceased to play music and even hid the youngest child’s toys. They did everything possible not to disturb. He even asked his guests to call by phone instead of knocking on the door.

The wife of the top-floor tenant corroborates the version of her husband, adding that when she walked around in the housing, the lower-floor tenant was hitting the ceiling following her movements. The son also confirmed that he often had to leave simultaneously with his mother in the morning in order to reduce the disturbance.

The landlords testify that the duplex’s upper tenants are very good tenants, the best they have ever had.

The Court’s decision

According to the judge, the evidence does absolutely not prove that the tenant was struggling with a noise problem which warranted to clear out of the housing, nor to obtain the termination of the lease. The sounds described were normal sounds. No evidence, of excessive noise or late at night, or music, partying, shouting, etc., has been demonstrated.

The Régie du logement rejects the request for damages with interest against the landlords, as follows:

“Moreover, the tenant, the owner, was used to living in his house and do what he wanted whenever he wanted. In his housing, the tenant has somehow acted as if he owned the place. Therefore he cannot - ex post facto - because he left his housing, request from the landlords payment for expenses incurred on his own based on the fact that he remained only 10 months in the premises. The departure was his choice, not because of any breach of the landlords.”¹

The Rental Board concluded that the landlords have acted to mitigate their damages by taking initiatives for the re-renting of the housing. It grants the equivalent of three months’ rent, i.e. $4,500, plus an amount of $100 for advertising costs, plus $350 in energy costs for the heating of the housing during 3 months. The tenant has been ordered to pay the sum of $4950 to the landlords.

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