Landlords of multi-family properties have an obligation to
ensure that all tenants have the quiet enjoyment of their premises. This includes the right to be free from
strong odors, allergens and noise. We
all understand the part about noise, and have for years enforced rules about
tenants and excessive noise from parties, music and arguments.
Why are we afraid to enforce rules about cooking odors and
pet noise/odors/allergens? Because
someone always hits us back with some explanation that contains the words “Fair
Housing.”
There is no need to be afraid of this, though. Tenants are not allowed to interfere with the
quiet enjoyment of other tenants. This includes the intrusion of offensive or
dangerous sounds or substances into the space of the innocent tenant, or into
the common areas. In other words, tenants are not allowed to “over-share.”
Not only CAN the
landlord do something about over-sharing, he SHOULD do something about it. That is because of two legal
principles called “quiet enjoyment” and “constructive eviction.” If the innocent tenant claims his quiet
enjoyment rights have been violated, and the landlord did not remedy the
situation, the innocent tenant can claim a “constructive eviction,” cancel its
lease, and sue the landlord for damages.
Do not let the offending tenant frame the issue. It is not
one of national origin discrimination. The issue is not about disabilities and
Fair Housing. The issue is one of the quiet enjoyment rights of other tenants.
Which one trumps the other? Quiet enjoyment trumps Fair
Housing.
The Fair Housing rule that requires you to accept an
emotional support animal, or a service animal, is called a Reasonable
Accommodation Request. It is a reasonable request to modify the rules
in order to accommodate a tenant with a
disability. We all seem to forget the “reasonable”
part of that phrase. While it might be
reasonable to allow the animal, that does not include the unlimited right to do
whatever the tenant wants in connection with the animal. The tenant cannot be
cruel to the animal, it cannot allow the animal to damage the rental unit, it
is liable if the animal injures someone else, and its animal is not allowed to
intrude into other people’s living spaces either with its physical presence or
its noise, odors or allergens.
The Fair Housing rule that prevents discrimination on the
basis of national origin means you cannot refuse to rent to Hispanics or
persons from the Middle East, as examples. You do not have to allow culturally
important activities that create excessive noise. You are allowed to put occupancy
limits related to the number of bedrooms, even though some cultures might
routinely allow 5 or 6 people to occupy each bedroom. And, you are allowed to prohibit over-sharing
of cooking odors that other tenants find objectionable.
The landlord’s response in these situations should be, “I am
not restricting your right to cook the foods of your heritage.[Or, I am not
restricting your right to have an emotional support or service animal.] I am restricting your over-sharing. You
rented Unit 123. You are allowed to use Unit 123. You are not allowed to use
other units. You are not allowed to invade other units with odors, noise, or
allergens that adversely affect tenants in other units. You are not allowed to
invade the common areas with odors, noise or allergens, to such a degree that
the common areas cannot be peaceably enjoyed by all tenants. You must take steps to control these things,
or you will be subject to eviction and suit for damages.”
Of course, this all depends on having the right lease language to allow landlord enforcement. If you are not sure, you might want to have your attorney review your lease documents. To learn more, check out some of our classes listed below.