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September 28, 2007
NOISE ISSUES, WHERE WILL LIABILITY LIE?
Each time I write about noise issues, I get several emails. So I will write more on the subject.
This is quite a difficult one. A very recent question involves a 4 or 5 year old child that is autistic. The upstairs child is up all night, and so the parents are up all night. The downstairs owner finds the noise intolerable and wants to know what their rights are.
This is truly a difficult issue. I guess before assessing any potential liabilty I would ask some questions. What are the parties doing to minimize the noise? Have the upstairs neighbors been notified? They are not always aware of the problem. If so, have they done anything to minimize the nightime disturbances? I do not even know all the possibilities, whether there are changes in habits that might help, medications, change of bedrooms, carpetting or noise reduction methods that could be implemented. As for the complaining party, my question would be" "What have you done to protect yourself in this difficult situation?" Again, I do not know what the possibilities might be but I would explore white noise, earplugs, change of bedrooms, talking to the neighbors, trying to find out whether nightime noise can somehow be converted to daytime noise which, I assume, would not be as disturbing (disturbing, yes, but not as disturbing).
I know of a situation where a family with an autistic child was the brunt of neighbor complaints. This family dealt with complaints about daytime noise(nightime noise was not an issue in this situation). They encouraged their children (one who had autism and the other who did not) to play upstairs in their bedrooms instead of downstairs over the neighboring unit, purchased a small trampoline for the upstairs carpeted bedroom so their son could jump without disturbing the neighbors, attempted as much as possible to take the children out during the day and on weekends, purchased rugs and pads from the floors that were over another unit, and still, this family had to live with constant complaints by the downstairs neighbors to the HOA.
I have in past years dealt with exactly the sort of situation complained of in this blog. Strong-arming a family dealing with a noise issue involving a disability or medical condition that exacerbates noise is not the answer. Autism, ADHD, and tourets syndrome are just such conditions, and it would not surprise me if any family being pursued or disciplined for these issues would fight back with a discrimination claim.
Still, that does not leave the family with the child problem off the hook. Both parties have to try and mitigate the problems by making reasonable concessions. And, if that does not resolve the problem, the parties might try mediation, or looking at other options if a lawsuit is to be considered. I personally do not think a lawsuit is the right approach here, but if it were to happen, the concessions made by either or both parties would probably be considered. And as for the HOA, the developer, the flooring installer, or any other party that might be named as a defendant here are some pertinent questions to ask:
Is this a pre-existing condition or did something change, i.e., flooring, neighbors, change in family circumstances, residents (number or age), and if there was a change that is now creating a problem, will it be remedied any time soon?
Are you just the problem, or also part of the solution?
Did you do anything to cause or exacerbate the noise issue(s)?
Did you do anything to mitigate or minimize the problems or condition leading to the problems?
Did any of the parties violate the governing documents in their actions?
Was there any requirement or duty to make disclosures?
If so, were those disclosures made to the right party?
Are there any viable solutions that do not involve expecting the impossible, such as moving when economics or life logistics do not allow it?
Liability depends on facts and circumstances. Did any party have a duty to the other party? Yes, that of a reasonable, prudent person.
Did any party breach that duty to the other person? That is determined by the facts.
If so, did that breach cause the damages or pain and suffering, nuisance, etc.?
If any of the parties can prove the answer to be "yes" to these questions, they may have a case.
But again, way before getting there, think about your actions, starting from Day 1 of the development: the planning stages, configuration of buildings and units, the flooring choices that make sense and do not, and the fallout from exercising options.
And I will say just a few more things.
Conversions from apartments to condos are a very common source of noise issues.
Boards that try to opt out of these disputes or shift the responsibility for resolution of them by relinquishing control in flooring choices are not then immune from exposure to liability.
Allowing hard surface flooring in stacked units often leads to these to noise issues.
I am not by writing this inviting answers to a specific situation and potential legal dispute. I am offering this blog as food for thought. There are not a lot of cases on noise issues, and there are not clean answers to all of the problems that exist, but what there is - is the responsibility to act responsibly under the circumstances, and think before you sue. I do recall reading about a case in an Alameda superior court several years ago where a jury awarded about $700,000 in damages to an owner who found theselves in a very untenable situation. I believe it went something like this: the upstairs owner installed hardwood flooring. The association board or architectural committee either approved it, or the hard surface floors were not allowed per the documents and the board ignored them in spite of the owner's complaints (I think it was the latter). The upstairs owner exacerbated matters by purchasing a piano and playing at all hours of the day and night, and knew this bothered the downstairs neighbors.
As I recall, the upstairs owner was found responsible for about 2/3 of the damages and the association was held responsible for about 1/3 of the award.
I cannot find a case cite for this case. It was not a binding appellate decision that I can recall. But it makes sense. The parties that enabled the problem and exacerbated it were held liable for serious damages.
I believe it could happen to you, if you are more a part of the problem than the solution.
Posted by Beth Grimm at September 28, 2007 11:03 PM