Q. I live in an apartment complex and the new tenants that moved in have parties all night and I can't sleep. I have complained to the landlord but he won't do anything. What can I do about the noisy tenants next door?

A. Normally a landlord is not responsible for the misdeeds of third parties, but if it was the landlord that placed those third parties in a position to disturb the tenant, then a cause of action for breach of contract arises. A covenant of quiet enjoyment exists in every residential rental agreement, whether it is so stated or not. If there is no covenant of quiet enjoyment, the court will construe the agreement (pretend) that there is one.

A covenant of quiet enjoyment is breached when a landlord obstructs, interferes with, or takes away from the tenant in a substantial degree the beneficial use of the leasehold, Frankel v. Steman (1915), 92 Ohio St. 197, 200. The interference with the tenant's quiet enjoyment must be so substantial as to be tantamount to an eviction, actual or constructive. This means that a few loud noises now and again aren't going to cut the mustard. The noise must be ongoing over a period of time and of such level and duration that no one could be expected to endure it. Where a landlord leased a building to one tenant for exclusive use as a boarding house, then built a two story garage next to the building cutting off light and air thereto, and the operators of the garage left its windows open night and day and the noises, fumes and smells emanating therefrom were of such a character as to cause customers to quit the boarding house and to render it unprofitable, there was a constructive eviction. Blaustein v. Pincus (1913), 47 Mont. 202, 131 P. 1064 as cited by Endress v. Equitable Life Assurance 1987 Ohio App. LEXIS 9433 (October 29, 1987) Cuyahoga App. No. 52958 unreported.

The tenant asserting the noise problem will have the burden of proof if the matter ever goes to court. The tenant would do well to document the goings on as much as possible. That means certified mail letters to the landlord and the keeping of photocopies of those letters. That means summoning the police and obtaining the reports that they make. That means tape recording the noise and noting the time and date by voice on the tape. That means getting other tenants to complain in writing as well and getting copies of such writings. That means keeping a detailed log or diary of times and dates of the occurrences.

If you do all of this, you will be able to exercise your rights under Ohio Revised Code Section 5321.07, treated elsewhere in this website.

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