« Board Members As Friends - Does it Work? | Main | SB 61 - Association Elections - Can it Be Fixed? »
November 1, 2005
Smoking, Noise, Nuisances - What Can You Do?
You have just bought your first home after apartment living for years. You are proud, relieved, and excited. Then it begins.
The neighbors have 3 kids and a dog who do nothing less than scurry around the unit all day, clickety clacking on the tile floors, slamming doors, and shouting or barking for joy. (They say a small child makes more floor noise than a 300 pound adult).
Or
The neighbor's smoke is intolerable. It invades your space and makes your life unbearable.
Or
The young newly married couple living upstairs has too much fun in the bedroom and you can't get a good night's sleep.
And you feel trapped. It's not like you can just move away. So what do you do?
Here are my suggestions:
1. Try self help measures first, like talking to the neighbor and asking for some neighborly cooperation, or try earplugs, "white" noise alternatives, air freshening devices, meditation, whatever may help.
2. If the racket or nuisance is ongoing, check the Association's governing documents to see if there is a prohibition on nuisances - usually there is something useful there. Write to the board and ask that the nuisance be addressed. But note that you as an owner have a right to enforce the governing documents. Do not expect miracles. The Board may consider whether it believes there actually is a violation of the governing documents and if so, take measures to address it. If the Board finds a nuisance, it may do whatever is authorized under the governing documents, such as fining, seeking attorney assistance and, if authorized, assessing to recover the costs, seeking a legal injunction, and things like that. In the above situations, it is unlikely the Board would resort to expensive measures such as seeking an injunction. Even in more serious cases, if a nuisance affects only one household, as opposed to a neighborhood or the entire development, it is unlikely that a drastic expenditure would be approved. That does not mean the Board is without other less drastic remedies. However, sometimes there are reasons why the Board may not choose to get involved.
3. Explore your own remedies. As an owner, you can enforce the governing documents. What that means is that you can sue someone to seek compliance, that is clear. Although an owner does not really have the authority to schedule a hearing and fine an owner or assess for costs such as for attorney assistance, the owner can bring an action in small claims court and ask for damages and recovery of attorneys fees paid to write a demand letter to the neighboring owner. Likewise, an owner does have the right to cite nuisance as a cause of action even if the governing documents do not have prohibitions against nuisances.
As for making your case, these are my thoughts on the above types of issues.
Daytime family and children noise is probably not actionable but if it is eggregious or goes on all night (which may be captured on tape or via a log of activities showing unnecessary or excess behavior) a disturbed owner might get a damages award, or the defendant might get a warning. If the dog barking is excessive, one might get a damage award but likely you would have to show that you contacted the local animal control officials first and were unable to get any relief.
Smoking is different with respect to at least one important factor. It is hazardous to one's health. If it is coming through the ventilating systm, the Board may or may not decide to take action, but either way, someone should put in writing a request/demand to use an air freshening system to the neighbor(s) who smokes. The person disturbed should try to do the same. It is difficult for a Board to make a demand preventing someone from smoking in their own home. But if there is a way to isolate systems so that the smoking fallout is minimized, it may be worth exploring. If the smoking takes place outside and the wafting air prevents a neighbor's enjoyment of their own deck or balcony upstairs, the Board might decide to address that as a nuisance. But if it does not, you can. again, you are not without remedy. You can use small claims court as a venue and try to get a damages award and order from the judge or hearing officer that the smoke needs to be contained.
As for the upstairs bedroom noise. I have had some rather creative suggestions for disturbed neighbors. If its a creaking or squeaking bed, offer a can of Wd40. Just the suggestion of "you" hearing them might minimize the disturbances in the future. If its a jumping bed, offer up casters. If its the noise, and open windows are the culprit ask the neighbors to get a ceiling fan or air conditioner (if allowed by the governing documents), or get one for yourself, and try that. If its intolerable, tape the noise and file a small claims complaint.
Nuisances that are really unbearable may well get the attention of a small claims judge or referee but be prepared - if you do not get any relief through asking the board or pursuing it yourself in small claims court, maybe its a case of "sucking it up" or putting your place on the market. Be careful about pushing your way into a lawsuit and ending up with - worst case scenario - having to pay your attorney, the other party's attorney, and being left with an undeniable nuisance (by your own admission in court papers) to disclose.
Posted by Beth Grimm at November 1, 2005 8:51 PM