Our board is getting a lot of noise complaints from residents. How should we respond?
By Steven R. Wagner
“Increasing numbers of New Yorkers are dealing with noise issues in their apartments because so many people are working or doing schooling from home,” says Steven Wagner, a real estate attorney at Wagner, Berkow & Brandt with decades of experience representing co-op and condo boards. He says it is very common for one or even both parties to come to the board and complain about a noise disturbance.
Wagner believes the board should certainly be involved. “If it becomes an unbearable situation for one or both residents, the co-op or condo will get sued, so it’s far better, if possible, to try and resolve the issue.”
He points out a board is best served by having a very specific standard of noise tolerance in the house rules in order to assess these types of complaints.
First steps for the board
It’s sensible for the board to start by documenting what is said between the two parties so there is a present recollection of what is taking place. Another first step is to notify your insurance carrier: If the situation escalates and the co-op or condo gets sued, the insurance carrier will defend and indemnify the board.
“This means the co-op or condo will not have to spend several thousand dollars or more defending a suit if it comes to that,” Wagner says.
The nature of the noise
There may be practical measures you can take to stop the noise and end the conflict between the parties. At this point you can consider this a business issue rather than a legal one. Wagner points out there are different types of noise—impact sounds or noise that is consistent over a longer period or that stops and starts—and they all differ in their degrees of annoyance.
“Impact noise can be lessened with soundproofing but a hole in a riser or vent could be making the situation worse,” Wagner says. If you can determine who is responsible you may be able to resolve the issue without litigation.
“Even so, demonstrating that you have taken practical steps to try and resolve the issue will be helpful if there is a suit,” Wagner says.
One way to prevent these issues from escalating is to make appropriate changes to the house rules. Having handled many of these types of cases, Wagner says he has found most house rules are frequently inadequate when it comes to tackling noise issues.
“They typically require 80 percent carpeting but I have had shareholders who are technically in compliance but the carpet is doing nothing to reduce the noise disturbance,” he says.
Wagner says a better alternative is to have compliance with the NYC noise code written into the house rules. This local law outlines what is considered reasonable and unreasonable noise in the city.
“By putting in a standard of compliance with the NYC noise code, if there is a dispute, you can take measurements to determine whether the noise violates the code or not, rather than just have the parties argue back and forth,” Wagner says.
If the level of noise disturbance violates the noise code, the owner or shareholder can be told to increase the soundproofing in their apartment. In the absence of a specific rule concerning the level of noise, Wagner says it may be very difficult for one party or the other to compel compliance.
In one building Wagner represented the board was advised to take the house rules a step further by introducing a provision that if the sound testing revealed a valid complaint, the resident violating the rules would have to pay for the noise testing.
“The noise test can be thousands of dollars and that had a pretty good effect on making people compliant,” he says.
The NYC noise code covers renovations and, in addition, co-ops and condos have rules about renovation work being conducted within specific hours.
Any potential renovation project requires a Tenant Protection Plan to be filed and Wagner says boards should review these documents as part of their assessment of any proposed renovation.
“Many architects use proforma Tenant Protection Plans that may not comply with the requirements of the building itself,” Wagner says.
“The wording in the plans, alteration agreements, and house rules can be adjusted to prevent noise violations as well as to put the emphasis on not disturbing any other residents in the building,” Wagner says.
Ideally you want to avoid litigation but if there is a specific standard that is being violated, you will have a claim for a private nuisance—something that can result in a court case. “Without a clear standard or if the house rules simply ask for 80 percent of the floor to be covered, you will not have a claim for private nuisance,” Wagner says.
Other legal remedies differ depending on whether you are in a co-op or a condo. “If there is a violation of the noise code in a condo, the board can bring a declaratory injunction to prohibit an owner making that kind of noise again,” Wagner says. If the noise doesn’t stop, a board can go to court and try and sue the owner for contempt.
“In a co-op you have the additional provision of terminating the lease based on the effect of the noise and then taking the shareholder to housing court which could result in eviction,” Wagner says.