Q&A: Basement Noises

Q&A: Basement Noises

Q For the past 2 months our apartment, which is on the ground floor above the basement, has been inundated with a loud noise from a faulty system of leaking pipes and non-working control valves, causing the sump pump to cycle on and off every 4-5 minutes, interrupting sleep.

The management office cannot seem to fix the problem and refused our request for a second opinion. We hired a master plumber on our own and his report blamed negligence and lack of oversight.

How can we force the board to solve this problem and absorb the $175 fee for this out-of-pocket expense?

—Co-op Shareholder in Queens

A “Noise issues are notoriously difficult to judge, because they can be quite subjective,” says Kenneth Jacobs of the New York-based law firm of Smith, Buss & Jacobs, LLP. “No matter what the shareholder wishes to do, she and her husband should try to get someone else to verify what they are hearing and confirm whether it would interfere with a ‘reasonable person’s’ ability to sleep or otherwise use the apartment.

“Hopefully supported by that verification, she and her husband have several remedies as co-op tenant-shareholders if they think that their landlord (the co-op corporation) is interfering with their ability to live in their apartment.

“First, they can call the Building Department and ask for an inspection to see if the noise level warrants placing a violation against the building. Violations can be ‘A,’ ‘B’ or ‘C’ levels. A ‘C’ violation is a ‘rent-impairing’ violation, which allows the shareholder to withhold maintenance. The co-op is also obligated to cure the violation. Although only the City of New York could enforce the violation, the shareholders could use the co-op’s failure in support of a separate claim, as described below.

“Second, co-op shareholders are entitled to the benefits of the ‘implied warranty of habitability,’ under which the landlord has the obligation to provide a safe and habitable premises to a tenant. If the noise from the sump pump makes it unreasonably difficult to sleep, it may constitute a breach of that warranty. This remedy is somewhat riskier, since it is usually invoked as a defense to a non-payment proceeding started by the co-op after the shareholder withholds maintenance charges. However, if the shareholder is successful, the housing court will order the cooperative to abate the nuisance and can order the co-op to pay the shareholder’s attorney’s fees. If the shareholder does not prevail, though, the shareholder would have to live with the noise and usually have to pay the co-op’s legal fees.

“Third, the shareholder could start a legal action against the cooperative on its own, claiming a breach of the cooperative’s obligation under its proprietary lease to keep the building in good repair or to provide a space that the shareholder can ‘quietly enjoy.’ (In this case, ‘quiet’ does not refer to noise, but to freedom from any type of unreasonable interference with the use of their unit.) The shareholder would also assert that the noise from the pumps constitutes a legal ‘nuisance’ which the cooperative is required to abate. Again, if the shareholder prevails the court has the right to award legal fees. The $175 that they have spent would be part of their damages.”

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