Q. The owner in the condo unit below mine is a nightmare: slamming/banging noise at all hours, screaming fights, rude guests loitering in front of the building. When I first complained to the board, they served him a cease and desist notice. The notice was useless; the noise has only gotten worse, and now includes his live-in girlfriend’s shouting and screaming, extremely loud sex at all hours, and bizarre crashing/smashing sounds. I’ve recorded the noise and sent it to management, whose only advice is to contact the police; the police say they can only intervene if the resident is disturbing the peace, or if there is a domestic disturbance. I’m at my limit. What can I do at this point? 

                        —Shaken and Disturbed

A.  “There is a level of disturbance that must be accepted in a densely populated city like New York that would not otherwise be expected in less concentrated areas,” says attorney Adam Finkelstein of Manhattan law firm Kagan Lubic Lepper Finkelstein & Gold, LLP. “Day-to-day sounds during normal waking hours are just a fact of life that do not afford remedy, even though some who have a heightened awareness of those noises may be more upset by such intrusions.  

“However, what the letter writer is describing here appears to be beyond the norm. Overhearing a conversation through a common wall between apartments, or a person practicing their trombone at 8 p.m. every other day may be annoying, but it does not rise to a level of being actionable; dealing with screaming, fighting, banging on walls, and loud sex during what would typically be deemed sleeping hours (between 11 p.m. and 7 a.m.) does create a potential claim for the affected neighbor. 

 “The question is, who has the burden of bringing this situation under control? In a condominium there is no landlord-tenant relationship, and therefore no warranty of habitability. Therefore there is no obligation on the part of the board to address a noise issue as a condition of receiving monthly common charges, as would be the case in a co-op. Likewise, while there may be condominium rules—and even the power granted to the board under the bylaws to take action or impose fines for violations—there is not usually a mandate that a board actually take such action on behalf of the affected unit owner, such action being discretionary by the board.

 “Therefore, if the board here is not taking action, the writer may be forced to bring their own action for nuisance against the offending neighbor. An action for nuisance allows the affected owner to seek damages that result from a neighbor’s actions 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 writer can prove these elements, they would be able to seek damages for the adverse impact this conduct is having on their use of their property. 

 “Of course, bringing an action will take time and cost money. To the extent the letter writer is not prepared to spend either, they still do have the recourse of seeking police intervention. It is possible that the conduct cited violates criminal code, and that would give the police the ability to take action if they see fit. The problem is that the writer cannot compel the police to take action, as the police maintain the discretion with regard to enforcement of the laws in this context, which is beyond the writer’s control.”