One of the most common complaints within condominium and community associations is excessive noise. The scenario usually plays out in a way similar to the following hypothetical. The association property manager or the board receives numerous complaints from a frustrated resident about excessive noise. The complaints range in variety from loud music, parties, banging and thumping from children, musical instruments, to elevated speaking voices. Regardless of the source of noise, complaints of this nature often involve four categories of people: 1) the complaining owner; 2) the alleged offender(s); 3) the property manager; and 4) the board of directors. This article provides a three hundred and sixty degree look at the rights, responsibilities and techniques available to help resolve a noise complaint from all perspectives.
Complaining Owner
If you have endured frequent noise disruption of any kind from a neighbor you understand the maddening impact it can have. Excessive noise disrupts sleep, interferes with an individual's psychological and physiological wellbeing, and destroys the peace and enjoyment derived while being home. Living in a condominium or community association environment often means living in close proximity to other people. Some noise will inevitably transmit between units, but too much noise is problematic. Unfortunately, noise complaints are subjective in nature since each of us has a different threshold for noise tolerance; therein lies the problem.
A complaining owner has a few available options for addressing excessive noise. Because noise complaints are subjective, when appropriate it is helpful to replicate the noise for the alleged offender. If the complaining owner feels safe and comfortable speaking directly with the alleged offender, the complaining owner may wish to invite the alleged offender into his or her unit to hear the noise. The noise may be replicated by blasting the stereo, increasing the volume on the television set, having a fake conversation with elevated voices, pretending to have children run across the floor, etc. The purpose of this exercise is to enable the alleged offender to experience firsthand what the excessive noise sounds like. Often times we are unable to fully appreciate the level of one’s suffering until we experience it ourselves. Note, it is important for both parties to have a neutral third party join them during this exercise. The ideal neutral third party is an uninvolved neighbor. Having the presence of a third party offers a second “ear” and presents more objectivity when evaluating the noise level. As a reminder, since the parties will be entering each other’s units, it is imperative they are comfortable with this arrangement and proper consent is provided.
If the complaining owner is unwilling to speak with the alleged offender for fear of retaliation or some other reason, he or she may contact the board or association property manager to file a complaint. Noise complaints should be filed in written form with as much detail as possible. Important information includes the date and time, location of the noise and a description of it including its frequency. Capturing the noise with a recording device is also helpful as it supports the complaint and may be shared with the alleged offender, board or both. Complaining owners may also invite another person or two into the unit to observe the excessive noise, if possible. Some associations allow complaints to be submitted by email while others require the completion of a specific complaint form. Be sure to review your association rules and regulations about lodging complaints to ensure proper compliance.
Alleged Offender
On occasion individuals have a heightened sensitivity to noise or an unreasonable expectation about the level and extent of noise transmission within a condominium or community association. This may lead to frequent complaints about excessive noise from a particular unit that may become disruptive to the alleged offender. One example that comes to mind is a family of four with two children under the age of five that reside in a three bedroom condominium unit on the thirty-third floor of a high-rise building. Directly below them resides an elderly couple in their seventies. Two weeks after the family moves in, the elderly couple begins lodging regular noise complaints with management. The complaints allege excessive noise at early hours each day (between 6 and 8 am) caused by the pitter-patter of children running and playing on the hardwood floors. The family receives a written warning notice from management about the allegations of excessive noise with instructions to cease such behavior or face fines. What should they do?
If a conversation alone is insufficient to end ongoing noise complaints, an alleged offender may try the noise replication technique described above. If the alleged offender has good reason to believe the noise falls within “reasonably acceptable levels” then recreating it for the complaining owner to experience may bring complaints to an end.
In the event a neighbor-to-neighbor conversation is not feasible the alleged offender may consider encouraging board members to visit the complaining owner’s unit, with proper consent, to experience the noise. The complaining owner may be inclined to grant a board member access to the unit to prove the truthfulness of his or her complaints. This may help resolve the complaints if the board member or members perceive the noise levels as reasonable.
In certain situations, if neighboring units vehemently disagree about the reasonableness of noise transmitting between units, an acoustic engineer may be hired to measure the sound transmission. The cost for hiring the engineer may be paid for by the complaining owner, the alleged offender or split equally between both parties. Acoustic engineering firms use a sound-level meter to measure various noises. The engineers then compare the reading to a standardized guide to identify where the sound falls on the scale of sound. The sound scale has a broad range from tiny subtle vibrations, to indoor speaking voices all the way to airplane or spaceship engines. It can prove helpful in establishing a more “objective” measurement of sound to assist in resolving a noise complaint between owners.
If all else fails unit owners have a legal right to the quiet use and enjoyment of their property. This includes a right to live within their unit in a reasonable manner without ongoing disruption or interference from neighbors. Notably, ongoing disruption and interference could present itself in the form of repeat unfounded complaints. If none of the above strategies bring resolution to the noise complaint, an alleged offender may consider consulting with a licensed attorney that focuses in the condominium and community association industry.
Property Manager
Addressing noise complaints for a property manager can be very challenging. As previously mentioned, they are subjective in nature which makes them difficult to outright declare a “violation.” Managers may find it beneficial to bring the parties together in some forum to discuss the ongoing noise. Doing this opens up lines of communication between the parties that may not have previously existed. It also forces the parties to face one another, which may soften the anger between them and may develop deeper understanding and empathy for one another. Managers are caught between a rock and a hard place. On the one hand they have an obligation to the Association to enforce the rules and regulations. On the other hand, they have an obligation to use their discretion to fully investigate whether alleged conduct constitutes a violation before action is taken. The ultimate decision of whether a violation exists should always be made by the board members and not the property manager.
An overeager board sometimes places undue pressure on a property manager to declare excessive noise a violation and to take immediate action. Managers should be careful and thoughtful in such situations before proceeding. Taking action against an alleged offender to appease an overeager board may result in liability for the association if a court rules that no violation occurred. The best course of action for a property manager is to consult with association legal counsel before sending any violation notices and before taking action of any kind. Rule enforcement requires interpreting association governing documents and applying rules to a specific set of facts. This type of analysis is best left to lawyers to perform. It also insulates the manager from any personal or professional liability.
Board Members
A condominium or community association board also has a difficult task when reviewing owner complaints of excessive noise. The board has a fiduciary responsibility to address all owner complaints with diligence. This means boards must reasonably investigate alleged violations until satisfied that one exists or does not exist. A mistake often made by boards is to immediately assume a violation exists whenever a complaint is lodged. This can and should be avoided by gathering necessary information and evidence before deciding whether further action is needed. Boards are well within their rights to request copies of any evidence supporting the allegations such as video recordings, audio recordings, pictures, witness statements, witness testimony, etc.
Further, boards may wish to experience or hear the alleged excessive noise firsthand if feasible. This involves coordinating a duplication of the noise with the cooperation of both parties. Often this helps board members decide whether the noise in question rises to the level of “unreasonable” such that a violation exists. Of course, boards must exercise caution and vigilance when entering units and should always ensure consent is provided and owners are accepting of this exercise.
If a violation exists based upon all of the evidence gathered by the board, it has an obligation to send a violation notice to the offending owner. Oftentimes a warning notice giving the owner an opportunity to stop the offending behavior is appropriate before levying fines. Sometimes offending owners are unaware they are creating noise that disrupts other owners and a simple warning notice resolves the nuisance.
If the offending conduct continues, boards should closely follow the violation enforcement protocol set forth in their rules and regulations. This usually involves a formal violation notice that includes an opportunity to be heard and the potential imposition of a fine. A second violation notice with escalating fines is usually the next step in the enforcement process. If necessary, a final violation notice followed by the commencement of legal action may occur. The board’s objective when deploying rule enforcement tactics is to halt the disruptive behavior. The objective should not be to raise additional funds for the association. Nor is it to punish a particular owner or resident because the board has a specific dislike for that individual. To the extent feasible, personal feelings and opinions should not factor into board rule enforcement decisions. While discussions about potential rule violations may occur in private outside the presence of unit owners, votes on any and all such decisions must be made during open board meetings, as required by law.
Rule enforcement in general is a difficult but necessary task boards must carry out on behalf of their association. It can cause animosity, anger fellow unit owners and neighbors and cause discord within the community. Alternatively, it also curbs disruptive behavior, protects the safety and wellbeing of association members, and helps ensure the association remains an enjoyable and safe place to live.
For more information and helpful tips on Association topics visit
www.shifrinlegal.com.
Shifrin Legal
