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May 12, 2008
MORE ON FLOORS - WHAT IF YOU LIVE UPSTAIRS?
More about condo flooring/noise issues: what if you are the neighbor who lives upstairs with the down stairs neighbor complaining of noise.
These problems are not easy to solve. A couple of readers' notes have been combined in this series of questions:
"We had our laminate flooring installed over a year ago. We asked our neighbor if he/she had any noise issue and he/she said no. Then our circumstances changed. We [had a baby, got a dog, had a relative(s) move in temporarily, got a new stereo system, a large plasma TV, new speakers, etc.]. The neighbor started complaining about the noise."
The notes go on to say that these writers had obtained architectural approval and that the underlayment that was presented to the Board/ACCs was considered sufficient. And so these owners want to know what they can/should do about the complaints. Two of the writers are selling, and have their properties in escrow, and want to know what to do about disclosures.
The following additional questions were asked:
"Do we have to get acoustical testing done if [the Board/Neighbor] asks for it?"
"If the [Board/Neighbor] decides to sue us for nuisance, would he/she have a case?"
"If the neighbor had complained about the noise earlier we could have [asked the contractor to fix the problem/added some padding or changed the accoustics], but now, we do not know what to do."
"Our board has been notified about the problem - [we] do not know if they will get involved with this issue."
With regard to any given flooring-noise related issue that is brought to my attention, I cannot of course say unequivocally one party [among whom might be the board, the upstairs neighbor, or the downstairs neighbor] is right or wrong, or would win in court if suing or being sued. All I can do is set out a sense of what questions might arise and let the parties or their attorneys have some criteria to consider. The bottom line is that the courts are not really very good at solving these issues unless there is a clear cut "wrong" that can be identified, and in many cases, there is not. I have heard from readers who want to sue, and also readers who have sued or been sued and ended up in court spending a lot of money without getting a satisfactory result.
So here are what I believe are some key questions to consider:
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. Does any party have a duty to the other party? [HINT: Generallly, the parties have a basic duty toward others to act as a reasonable, prudent person. Boards have a higher duty because of their "fiduciary" capacity which means they have some control over owner's assets. Developers have more specialized knowledge which might suggest they have a higher duty as well. By "higher" duty, I mean may have to be more careful, do more investigation, perhaps consult experts, etc., which is "higher" than having to just act reasonably.]
Did any party breach its 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 any of these questions, they may have a case.
In the above examples, there are some things the upper floor owners can do - and maybe should do. After all, it may be incumbent on them to alter the situation, since it is their circumstances which changed after approval had been given for the floors and it was those changes that lead to complaints from a resident living below who had not earlier complained about the flooring. Getting ACC approval does not insure that owners will never have to answer to anyone if a nuisance situation develops.
So the upstairs owners might add some padded runners in the traffic areas, turn down the noisy speakers or TV, place padding under the new surround sound speakers, take the kids out as much as possible or set up their toys in the least offensive (with regard to the noise transmission) room, buy quieter toys or engage the kids in thinking or board games instead of in house running, jumping or throwing things.
Generally, each party can do SOMETHING to alleviate the "noisy" nuisance. Standing firm on principle (such as "I have approval for the floors", or "The neighbor did not complain before", or "We have a right to a quiet home all hours of the day", or "They did not even ask for approval for the floors") rarely leads to resolution of the problems. And unresolved, they tend to escalate into neighbor-to-neighbor battles, unrest in the home, and disclosure issues.
[Of course, I may be able to offer more insightful information and suggestions if I knew more about a situation and if any reader wants more specific information as to what they might or should do in their particular situation. A paid consultation can be arranged. Just go to http://www.californiacondoguru.com and look for the consultation form.
Posted by Beth Grimm at May 12, 2008 9:06 PM