It’s not necessarily to the degree of the Hatfields vs. the McCoys, the famous mountain clan involved in a decades-long blood feud, but living side-by-side in a co-op or a condo can, needless to say, get pretty heated on occasion.
So as an attorney and an apartment dweller, Michelle Freudenberger believes she had seen it all when it comes to living with difficult residents. “I lived next door to twin toddlers whose parents were both attorneys,” says Freudenberger, a principal attorney for the Law Offices of Michelle Freudenberger in Manhattan. “They took turns sleeping late and brought the kids to the kitchen early. Every morning, one child screeched at the crack of dawn.”
Wanting to keep peace, and understanding parenting challenges, she didn’t complain to the neighbors until one morning when sickened by the flu, she had finally fallen asleep only to be awakened in the wee hours by a screaming child. “I was banging on the walls out of desperation, but the father screamed back ‘get used to living in an apartment!’ ” says Freudenberger.
Can’t We All Just Get Along?
While most cooperative and condominiums will, at one time or another, have to deal with situations involving a difficult resident—be it a noisy neighbor, a complaining shareholder, or perhaps a tenant who habitually breaks house rules—Freudenberger and others do not just have to ‘get used to it.’
Steps usually found in the board’s or association’s bylaws can provide guidance to residents, managers and the board to deal with the problem of objectionable tenants and create a more positive atmosphere within the overall building community.
What's Your Problem?
Neighbors can complain about many things but most common complaints are: excessive noise; smoking; leaving belongings out; stealing laundry; and not locking doors after exiting or entering.
However, what is considered 'disruptive' is subjective at best. According to Judge William Huss, co-author of Homeowners Associations and You: The Ultimate Guide to Harmonious Community Living, (Sphinx Publishing; 2006), a vocal tenant morphs into an ‘objectionable’ tenant “[When] the person who is complaining interferes with the normal atmosphere of the association’s activities.”
The best definition of what is considered appropriate and reasonable tenant behavior will be the bylaws or regulations of the community.
According to Steven Wagner, Esq., at the Manhattan law firm of Wagner Davis P.C., “There's a couple of different places you can look for information or definitions for noise.” He notes that in the proprietary lease, there is typically a section entitled “Odors and Noise,” and another section defines “General Objectionable Conduct,” which is, if you repeatedly violate the house rules after notice, then that becomes objectionable conduct per se and would allow the board to terminate the propriety lease, he explains.
A common example, says Wagner, reads like the following: “No lessee shall make or permit any disturbing noises in the building or do or permit anything to be done on their end to which will interfere with the rights, comforts or convenience of other lessees. No lessee shall play or suffer to be played upon any musical instrument or permit to be operated a phonograph or radio or television loudspeaker in such lessee's apartment between the hours of 11 p.m. and the following 8 a.m. If the same shall disturb or annoy other occupants of the building, no construction or repair work or other instillation involving noise shall be conducted in any apartment except on weekdays, not including legal holidays, and only between the hours of 8:30 a.m. and 5 p.m.”
Today that wording would probably be subject to an amendment referencing the technologies of the day rather than that of a record player—so it’s wise to make sure your bylaws and house rules are up-to-date.
However the case may be, and in any setting, no matter how restrictive, it is likely that violations will still occur. It is therefore important to address the problem swiftly and in an effective manner, trying not to further exacerbate residential resentment.
Reaching a Resolution
There are many approaches to solving conflict, depending on the nature of the problem. Solving neighbor-to-neighbor problems should simply start between the neighbors themselves. Getting the parties to talk to one another is probably the best first step, says Freudenberger. “First, you should try to straighten out everything in a friendly manner,” says Freudenberger, who suggests—in a situation such as hers—knocking on the neighbor’s door and try to discuss the problem in a calm, civil manner. “But if that doesn’t work, the shareholder should start documenting the problem and then send a certified letter to the board and management.”
Freudenberger’s situation came to an end when her neighbors abruptly moved. They had been cited by the board for not complying with the 80 percent carpeting rule, which might have dampened the noise.
In cases where moving is not an option, it’s the primary responsibility of the board and management to look into and resolve all problems, once a shareholder has initiated a complaint. How exactly the board acts will depend largely on what’s laid out in the community’s bylaws.
“The first step is that the resident informs management in writing and management investigates and tries to determine if there's a violation of the building's house rules,” says Dan Wurtzel, president of Manhattan-based Cooper Square Realty. He recommends that boards and management conduct their own internal investigations to determine the depth and legitimacy of the problem.
Wurtzel adds that in some cases, seemingly disruptive neighbors may actually not be violating any rules. “Sometimes we have a lot of complaints in buildings where somebody is doing construction in their apartment and people are home during the day in the apartment below so they get annoyed with that and that bothers them. But there's not really much we can do as long as the construction has been approved and they're working within the proper time frames that will work as permitted in the building,” he says.
In that case, Wurtzel recommends that neighbors maintain open communication with each other about when any heightened noise will occur, just as a heads-up. If the management or board does uncover a violation, Wagner advocates checking to see if other neighbors are also affected by the problem. “You should show that it's not just you having a fight with this one person,” he says.
The last resort should be litigation. Iris Shorin, a real estate attorney in Manhattan lives in what she calls a “traditional, non-litigious” building and says this type of building can exist.
“Neighbors may sue neighbors, but we’re not a litigious board,” she explains. “We know how much litigation costs, and we will try to settle with the resident no matter how long it takes.”
In some associations, mediation is another problem-solving possibility. To minimize potential problems neighbor-to-neighbor or shareholder-to-board, Huss makes several recommendations, including:
• Give everyone who wants to speak a chance: “Every meeting should have a certain time when members can speak out about certain problems,” he says. “The people have to feel they are having that opportunity.”
• Avoid special treatment for certain members—“Some board members are tempted to ask for all kinds of special privileges, and when anyone is given special treatment it creates animosity and creates litigation.”
It’s the Last Straw
If your board has tried everything from negotiating to mediating to a firm directive to get a problem resident or tenant to change their ways, voting them out of the building may be the next, and final, step in solving the problem.
“Ejecting a tenant is the most serious thing a board can do,” says Gil Feder, a partner with the Manhattan-based law firm of Reed Smith. “In the court system, the courts will defer to what the board did—as long as the board followed the rules.”
And explains Feder, those rules typically include sending the resident or the tenant a notice of the board’s intention to evict them and, most importantly, giving them that critical opportunity and right to be heard.
“The notice must be detailed, telling the shareholder what they’ve done,” says Feder. “The letter should outline how long they have to fix the problem; sometimes, if it’s one incident, they’ll say don’t do it again.”
An eviction decision can be overturned, according to Wagner, if the board failed to follow the correct procedure in dealing with the situation or if it can be proved that they were acting beyond their power, for example, discriminating against you.
Otherwise, the decision of the board will be honored. “If the co-op follows the rules in the proprietary lease about notice, about hearing, and giving the individual who is making the noise an opportunity to defend themselves and be heard, the courts will not look behind the decision that was made by the board. They will accept the business judgment of the board to terminate the proprietary lease,” he says.
While taking the matter to court may seem like the only option for certain residents, the process can be challenging and costly for both the board and the residents.
“It's a lot of money to litigate and people are more likely to move than spend large amounts of money litigating right to the end. Getting the other people to come in and support the action by the board against the tenant shareholder who's making too much noise is also difficult. A lot of people will complain and they'll say they'll give you a letter or they'll even give you an affidavit, but that's not proof in court. In court, you have to go in and testify and subject yourself to cross-examination,” Wagner says.
In the end, dealing with a disruptive or problem resident is hard on everybody. That said, neighbors, boards and management need to work together to resolve problems efficiently and effectively. The bottom line is that most residents really do not want to be troublemakers—they just want to have their complaints heard and acknowledged.
Lisa Iannucci is a freelance writer and a frequent contributor to The Cooperator. Editorial Assistant Maggie Puniewska contributed to this article.