Board Duty to Investigate and Mediate Nuisance Complaints

When confronted with persistent and disruptive behavior …

INVESTIGATE AND MEDIATE

In New York City, you have to tolerate a certain amount of reasonable noise — people talking, TVs playing, footsteps from the neighbor upstairs. Noise is very, very subjective, but arguably somebody continually blasting the television at 3 o’clock in the morning in an apartment with no soundproofing would typically be considered a nuisance. A nuisance is conduct that’s unreasonable,  persistent or egregious and/or that threatens the health, safety or comfort of other residents. 

INVESTIGATING THE ISSUE. Noise, odors, unreasonable cooking smells, vermin and hoarding all fall under the category of nuisance. And in all cases boards have a duty to investigate. That doesn’t mean that they need to take the complaint at face value, because the offending shareholder may not be doing anything wrong. Also, sometimes these issues are easily resolved if you sit down with the complaining and the offending shareholders or unit-owners and find a middle ground. If a resident is complaining of excessive noise in the apartment above, the board may want to simply remind the upstairs neighbor about a carpeting requirement. 

The problem is, noise isn’t always consistent. A board that gets complaints about mechanical noise, elevators or the HVAC system can bring in an acoustical engineer to take readings to see if the noise code is being breached. But with complaints about talking and yelling, the noise is more intermittent.

DOCUMENTATION AND TESTIMONY. Documenting the nuisance is important. This will identify how many people are complaining, when is it happening, how often and for how long. If the problem escalates and can’t be resolved, the next step could be a legal action. If that is being considered, you’ll need to ensure individuals affected by the behavior are prepared to testify in court, describing and explaining how and why the noise is impacting their life and why it’s unreasonable. If the board brings an action and the shareholder affected by the nuisance doesn’t cooperate, the board may lose the case and also be on the hook for legal fees. The complaints of one shareholder may not be enough, but if it’s four shareholders or a whole floor complaining, that’s a lot more effective. 

MEDIATED SOLUTIONS. If a board doesn’t do anything about a genuine nuisance, there may be potential liability to the board. Sometimes sitting down with both shareholders or unit-owners in mediation can be the solution. We’ve had buildings where neighboring residents have agreed to install acoustical tiles or soundproofing tiles between the floors, or the building has agreed to spray foam insulation between the floors to reduce noise.