THE LANDLORD'S RIGHT TO TERMINATE A LEASE DUE TO TENANT'S NUISANCE AND EXCESSIVE NOISE

1.???? Introduction

Landlords have a vested interest in ensuring their rental properties are controlled and managed effectively and that all tenants adhere to the terms of their lease agreements. One of the common issues that may create a conflict between a landlord and a tenant is a tenant's behaviour that disrupts the peaceful enjoyment of other tenants or neighbours. Under common law, this falls under the tort of nuisance. Noise complaints make up the majority of nuisances in rental properties. Excessive noise can lead to violations of lease provisions and legislation.

2.???? Lease Agreement Provisions

This primary document indicates the provisions under which a lease or tenancy may be terminated. Most leases include provisions that address tenant conduct and responsibilities; such provisions pertain to nuisances. Typical lease agreements may have a clause that requires tenants to maintain a certain level of quiet or refrain from disturbing the peace. A clause to refrain from disturbing the peace can also be inferred in lease agreements.

The implied warranty of quiet enjoyment refers to a legal doctrine that automatically exists in every residential lease agreement that guarantees the tenant the right to another use of the property without substantial interference. If a tenant's behaviour is such that it leads to, for example, excessive noises at night and causes complaints from the tenants, that tenant can be evicted by the landlord.

3.????Example of a clause in the lease agreement prohibiting excessive noise

The tenant hereby agrees not to cause or permit any loud or disruptive noise that would disturb the peace and quiet of other residents or neighbours.

When a tenant’s behaviour violates such a provision, the landlord generally has the right to take action. It’s always good for landlords to carefully review the lease agreements to understand the specific terms and conditions related to tenant conduct and termination.

4.???? Legal grounds for termination

Landlords can terminate a tenancy for nuisance under the following legal grounds:

???????????????? i.????????? When the noise complaints lead to a breach of the lease agreement, it will be a breach. The landlord may thus have grounds to terminate the tenancy. The breach has to be substantial and severe. Evidence of complaints and disturbances could come in handy in determining the severity of the noises and disturbances caused by a tenant.

??????????????? ii.????????? Violation of legislation and regulations could also be factored in when terminating a lease agreement based on noise complaints. Noise and disturbances, such as loud music and parties, can violate environmental regulations. These regulations prevent excessive noise in dwelling areas. The law also prohibits excessive noise during the night and caps noise levels at specific decibels. For instance, in Kenya, we have the Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009 (Legal Notice No. 61).

????????????? iii.????????? Even when the lease agreement is silent on noises, habitual disturbances and noises that have a substantial impact on the reasonable enjoyment and use of the neighbouring properties may provide a reason for evicting a tenant. It is important to have documentation for complaints and disturbances, including notices sent to the tenant.

5.???? Legal provisions

Under Article 42 of the Constitution of Kenya 2010, every citizen is granted the right to a clean and healthy environment.

Furthermore, the Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009 (Legal Notice No. 61), deal with noise pollution and prohibit excessive vibrations and noise that goes beyond a certain level.

The tort of nuisance provides a common law framework whereby damages can be awarded to a plaintiff.

6.???? Required Procedures and Notices

Landlords are required to follow procedures outlined in legislation and in the provisions of the lease agreement. If the lease agreement requires notice for a certain period, that notice period must be followed.

A cease-and-desist or a notice can be issued to such a tenant before eviction. This notice of cease-and-desist will allow the tenant to cure the nuisance.

The tenant will be evicted if he does not comply with the notice or continues to cause disturbance, nuisance, or noises that cause substantial interference with the use and enjoyment of other tenants' and neighbours' properties.

7.???? Documentation and procedure

In extreme cases, a dispute related to nuisance and noise complaints can make its way to the courts or tribunal. To support a termination based on nuisance, landlords should maintain comprehensive documentation and evidence, including:

1. The records of complaints from the other tenants and neighbouring property owners.
2. Written notices, cease-and-desist letters, or warnings are sent to the tenant.
3. Correspondence that relates to the nuisance.
4. Evidence of the tenant’s failure to cure the issue, if applicable.

8.???? Conclusion

Landlords have the right to terminate a lease agreement if a tenant’s behaviour, such as excessive noise, constitutes a breach of the lease agreement, statute, or regulations. However, it is important that the landlord follow proper procedures, such as notice, and maintain appropriate documentation to support their claims if a dispute arises. By following these guidelines, landlords can effectively manage nuisance issues while ensuring compliance with legal requirements.

The same principles also apply to commercial leases. However, many businesses are often located in zoned commercial areas, and hence what is reasonable noise in a commercial or industrial area is different from what is reasonable noise in a residential zoned area.

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NOTICE: THIS IS NOT LEGAL ADVICE. SEEK LEGAL ADVICE FROM YOUR LAWYERS.