Page 5 - CooperatorNews New York December 2021

COOPERATORNEWS.COM COOPERATORNEWS — DECEMBER 2021 5 QUESTIONS & ANSWERS Legal Q A& Disturbing Neighbors Q I live in a condo where there are quiet hours aft er 9 p.m., and all disturbing noise, no matter the time, can result in a fi ne. Two months aft er I moved in, the downstairs neigh- bor moved in, and it’s been a nightmare ever since. Banging, screaming, fi ghts, rude guests who loiter and scream in front of the building. Th ree months aft er he moved in, I fi nally complained to the association, and they served the down- stairs guy a cease and desist notice. Upon receiving it, he came directly to me and tried to smooth things over. It was shock- ing. He fl at out admitted to being a drug dealer, and off ered me illicit substances as an olive branch. I didn’t have my phone to record the convo, and wasn’t sure a record of it could be used anyway, given that he didn’t permit me to record it. At any rate, since then the noise level has gotten worse and worse. His live-in girlfriend screams frequently, and I’m told (by him) that she’s “hard to control when she’s drunk.” Th ey have extremely loud sex at 1 a.m. while I’m trying to sleep; just today while on a work call, noise erupted from down- stairs that could only be a psychotic epi- sode from drug use, babbling sounds like speaking in tongues, thrashing, banging. I recorded the noise and sent it to man- agement. Th ey’ve told me over and over again to contact the police, but the police have told me they can only intervene if the resident is disturbing the peace or if there is a domestic disturbance. Th is is one for the books. Is anyone able to impart any advice? —Shaken and Disturbed A “Living in a high-density city like New York certain- ly presents challenges to people living peacefully with one another when separated by thin walls, fl oors, or ceilings,” says attorney Adam Finkelstein of Manhattan law fi rm Kagan Lubic Lep- per Finkelstein & Gold, LLP. “As such, there is a level of disturbance that must be accepted here that would not otherwise be expected in less concentrated areas. Day-to-day sounds during normal waking hours are just a fact of life that do not af- ford remedy, even though some may have a heightened awareness of those noises and are therefore more upset by such in- trusions on their lives. “Here, though, the letter-writer is de- scribing sounds that appear to be beyond the norm. In this regard, while overhear- ing a conversation one aft ernoon through a common wall between apartments, or a person practicing their trombone at 8 p.m. every other day may be annoying, it does not rise to a level of being actionable; dealing with screaming, fi ghting, banging on walls, and loud sex during what would typically be deemed sleeping hours (aft er 11 p.m. and before 7 a.m.) does create a potential claim for the aff ected neighbor. “Th e question though arises as to who has the burden of bringing this situa- tion under control. In a cooperative, the responsibility could arguably fall on the board, because in that context the coop- erative is the landlord and therefore has an obligation to provide habitable accom- modations. If the noise level, timing, and frequency impacts the ability of the aff ect- ed person to use their own apartment, the aff ected resident may be able to seek an abatement and avoid paying maintenance or a portion of the maintenance until the situation is resolved. In this case, however, the aff ected owner resides in a condomin- ium. In a condominium there is no land- lord-tenant relationship, and therefore no warranty of habitability. Th erefore there is no obligation on the part of the board to address a noise issue as a condition of re- ceiving monthly common charges. Like- wise, while there may be condominium rules—and even the power granted to the board of managers under the bylaws to take action or impose fi nes for conduct that violates the rules—there is not usu- ally a mandate that a board actually take such action on behalf of the aff ected unit owner, such action being discretionary by the board. “Th erefore, if the board here is not taking action with regard to these prob- lems, the letter writer may be forced to bring its own action for nuisance against the off ending neighbor. An action for nui- sance allows the aff ected owner to seek damages that result from a neighbor’s ac- tions on the neighbor’s property that are (a) substantial in nature, (b) intentional in origin, (c) unreasonable in character, (d) interfere with a person’s right to use and enjoy their property, and (e) caused by another’s conduct in acting, or failing to act. If the letter writer can prove these elements, they would be able to seek dam- ages for the adverse impact this conduct is having on their use of their property. “Of course, bringing an action for nuisance will take time and cost money. To the extent the letter writer is not pre- pared to spend either, they still do have the recourse of seeking police interven- From daily operations to crisis management, the support you receive from your property management company is invaluable. We encourage condo and co-op board members and multifamily rental building owners to use this checklist to evaluate the services, solutions and resources provided by your management company and assess how those offerings align with the unique goals and expectations you have for your property. Click or scan the QR code for access. www.fsresidential.com/new-york LetsTalk.NY@fsresidential.com 212.324.9944 Does your management company check the boxes? Making a Difference. Every Day. 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