June 22, 2010
Screaming Babies - Can You Sue Them For Nuisance?
The following is a very difficult set of facts. Some situations are just not conducive to litigation or punishment until it can be established that the parties are not making any compromises or working to find a mutual solution.
Kid noise is the source of many disputes in condominiums and townhomes. It can be a problem in apartments too, but it is easier for a party that is a renter to leave an apartment and find another place to live. And keep in mind that "it takes two to tango" as they say.
Here are the facts as presented to me:
"We are renting a condominium from a friend and have a 1 1/2 year old toddler. On occasion, he has a tendency to scream quite loud, whether it is because he is upset or just wanting to let out steam. To our knowledge, his screaming has never occurred before 9 am. Our neighbors have complained to us about the "noise" coming from our unit since the day we moved in and have now taken the issue up with the HOA.
We got a visit from one of the HOA members yesterday who wants to find a solution before involving the landlord and deciding disciplinary action against them.
We do not understand our rights as renters and what we are supposed to do in this situation. We do not encourage our son to scream, but at his age we do not know what recourse we have. We are doing our best to re-direct his energy into different activities, but we also believe it is a normal phase toddlers go through at his age. We have been in our unit for less than 5 months and have been bothered with this issue on three different occasions.
Do you have any advice? And does the HOA have any legal recourse against us?"
First of all, let me say "kudos" to the board member for seeking some kind of resolution before meting out punishment on the landlord or anyone else.
Let's say that you are the decision maker in this situation having to mete out the punishment, if there is to be any. Who do you think should "win" if a legal battle ensues? Do you think anyone should be punished in this situation?
If you have kids or grandkids that are hyperactive, easily excitable, colicky or just plain heavy footed or noisy, you will sympathize with the tenants who have the child screamer.
If you are single or a couple without children or with perfect children, work at home, work nights and sleep days, are a senior citizen who has "paid his or her dues" and are looking for a peaceful place to live, or are disturbed by loud and unpleasant noises, you will most certainly side with the complaining neighbor.
If you are an HOA lawyer without compassion you might say that any loud noises of this magnitude are a disturbance and should be punishable by the full extent of the authority of the governing documents. Or you might be inclined just the opposite to say this is not the board's problem, that it is a neighbor to neighbor dispute and the board should not get involved.
As for legal rights, the board could impose discipline on the owner of the property including fines, suspension of some of the rights of owners (and tenants by delegation) and the like, according to what the governing documents allow, for each incident. And the board could likewise probably opt out of the dispute and refer the parties to a local mediation service. If taking action against the owner for the screaming baby noise, the board would want to be careful to avoid any action that could be perceived as discriminatory, meaning a violation of the constitutional protections for families with children.
So who is right? Everyone? ... No One? Here are some things I would recommend that the parties consider:
The Renters With the Screaming Child
Move: If you can move to a new place with better insulation or a home without party walls, life will be simpler. Of course, this may not be possible for financial or other reasons.
Check with a medical doctor, psychologist or behaviorist that works with toddlers to see if there is anything that can be done to help the child cope or help you (the parents) deal with the screaming in a manner that minimizes it.Perhaps there is some solution involving a distraction, supplement, food, medication, or something else that can be used to assist in the situation. It would make sense to keep a log of incidents, times, and circumstances surrounding the screaming incidents both for your own use, for informational purposes for any provider, and/or for a documented record in case there are allegations made of noise when it is not your child.
If You Are The Complainer
Remember, every time the child is screaming the parents have a front row seat and so it is at least as disturbing to the parent, and actually doubly so since they have to endure the baby noise, and the neighbors' wrath. Be glad you are not the parent having to cope with complaints about a condition that seems unresolvable related to children noise.
Get some noise cancelling headphones and be glad that the noise is not caused by a stereo with extra high def base on and surround sound speakers placed on a hardwood, laminate or tile floor.
Get surround sound and when the screaming starts turn on a movie about a car race, something like Thunder Road or a musical, or turn on the stereo and listen to some lively music (not so loud it disturbs the neighbors).
Indicate to the neighbor a willingness to talk about the situation and see if there is something you can do to work things out.
And for 3 times in 5 months, have a heart.
Posted by Beth Grimm at 9:46 PM
May 4, 2010
Public Flogging - What is the Worst That Can Happen?
I receive a lot of emails from all over the country about goings on. I know that people get seriously angry when things happen that they think are unfair. Many come to lawyers wanting to sue. Some, when they find out the cost of a lawsuit (which seems to be a mentality that is hard to shake), turn to things they CAN DO cheaply. But choosing the easier path doesn't always turn out to be the cheapest form of blowing off steam.
Here is one story that you won't want to ignore, which is taken from a Press Release issued by the owner of the property.
"PRESS RELEASE - FOR IMMEDIATE RELEASE
Gatlinburg, Tennessee Home Owners Association Files $1 Million Lawsuit
Against Blog Author and Property Owner
A Tennessee Home Owners Association has filed a $1 million lawsuit against one of its property owners for defamation, libel, slander, and false light invasion of privacy. The property owner, Robert Goodman, has operated a blog that has heavily criticized the actions of the HOA’s general manager and board of directors for alleged violations of both its own HOA controlling documents and Tennessee state law. The HOA board has filed the lawsuit in an attempt to force virtually all content to be removed from the blog and prevent any new entries."
The blog is at www.DeerRidgeOwners.com. I provide this information and not because I have any specific information take on which side is right or wrong, but merely as straight up information of a possible "worst case scenario" to consider illustrating what can happen when an owner speaks out in a derogatory way publicly about his or her association or board, especially in a way that can reach millions of people. Use of the internet communication systems as a mean of lambasting any party can escalate any differences and damages in any lawsuit that might occur.
I have not visited the blog, but it seems it might serve as a model of what-not-to-do if you don't want to get sued. This type of situation could happen in the reverse as well if a board defames an owner (the only defense to defamation is the truth but as you can imagine, there are other potential issues like violating rights of privacy, etc, when negative information about a party is sent distributed publicly). And, even when there is a viable defense, litigation is painful and costly in many ways.
In California there are many ways for an unhappy owner to approach your board or for the board to approach owners about association issues short of public flogging (by either side).
Posted by Beth Grimm at 10:38 AM
November 5, 2009
Why Do Judges Tend to Make Sorry Mediators for HOA and Condo Architectural and Enforcement Cases?
Some days I pick up my coffee in the morning, got a call, and forget about everything I was planning to do, because the call triggers extreme disdain. This is one of those mornings.
Imagine yourself in a mediation for which you have plunked down several thousand dollars to cover the cost of the mediator, the mediator's administrator, and your attorney. The mediator walks in and says: "Well, I have been out to this site, and it [does/does not] look [okay/good/that bad/that terrible/that objectionable] to me."
If I were in such a mediation advocating on behalf of either party, I might suggest that the party get up and walk out, unless, of course, I was on the side with the mediator. It's clear, right? ... that the mediator has established a bias before anyone opens their mouth.
Heck, I am not saying that mediators should not see or be advised about a condition that the parties are fighting over. In case you missed it, I AM SAYING THAT IT IS MY OPINION THAT MEDIATORS SHOULD NOT INTERJECT THEIR OPINIONS UNLESS SPECIFICALLY ASKED, AND THEN IN PRIVATE CAUCUS ONLY! Because when they do, they skew the whole process. Maybe that works in other areas, but it does not allow the process to work properly in HOA and Condo disputes over rules, regulations, architectural control and restrictions cases.
Mediators who do this kind of thing and/or have insufficient experience in HOA or Condo law do not understand the damage they are doing. And, this kind of conduct indicates to me that the person is quite dangerous and is not going to be helpful in assisting the parties in finding a resolution that will work best for everyone or create the least harm for any particular party.
Very frankly, it is often worse when that person is a retired judge, because the tendency of persons who have spent years “on the bench” is that they have a hard time passing the ball off to the parties so they can settle their own differences.
So, you might ask, what experience have I had to say these things? Well, in one situation I had to ask a retired judge mediator to step out of the room after his opening remarks so I could tell him that if he did not keep his opinions to himself I would walk my clients right out the door. I have conducted many mediations and know what works. I have advocated in many mediations and know what works and know how to corral or muzzle a bad mediator. I have had various trainings at a prestigious university in California and other venues in mediation practices. In the earlier years of my attendance at the university's center for mediation the providers separated judges from the “other” people. Obviously, they recognized a completely different perspective and skill set. But what I heard later after a few annual sessions is that the judges needed to be integrated with “other people” to get the full value of mediation training because it is so different from judging cases. At any rate, at some point, the center for mediation made the decision to mix the two groups. That summer was the last summer I attended any classes. I endured an entire weekend having been put with four judges or retired judges for the breakout groups. I suppose it was because I am an attorney. I suppose the perception was that I would work well with this group being in the same field. The truth is I realized very early on it (the first breakout) that it was going to be a very long tedious weekend. What I learned, which I already had sensed anyway, was that spending any time in a closed room with people who are “hoist” on their own petard (full of testosterone and ego – men or women included) is not my cup of tea. When 4 out of 5 people are arguing and posturing to “run the mediation”, well, … need I say more? I already had a sense of this when doing litigation where I found myself sitting in a sea of fancy suits and black robes for hours on end waiting … waiting … and waiting some more. (The “waste” of time and the roomful of “billable hours” tick … tick … ticking was enough to send me looking for a better alternative). I stopped doing litigation and turned to mediation because I thought it was a much better way to resolve differences. The parties retain their dignity, their empowerment, and their ability to craft a creative resolution that is unreachable in a court of law.
Thus, perhaps you can understand why I get so perturbed when I hear of a situation where a mediator is not a mediator is not a mediator. It hurts the parties and it hurts the cause.
Since I like to offer solutions when possible, I now think a fair question for any mediator prior to sending them any money (and especially when being asked to choose from a panel of retired judges) is: “Do you plan to offer your own opinions as to who is right and who is wrong?” If the answer is anything other than this: “Not unless a party specifically asks me for my thoughts and then, only in caucus with one of the parties that has asked me to do so,” ... definitely consider calling the next person on the list.
Mediators -- I realize that some people are looking for a heavy handed decision maker, and some people want to know your opinion, but the foundation of mediation is helping the parties to come to resolution and not to impose your own resolution upon them. Be an arbitrator if you want to make the decisions for the parties!
I am not saying that making suggestions is bad, and if the mediator has ideas that may not be apparent to the parties about means to an end, then finding a way to interject those ideas or to help the parties think of the ideas themselves can be of great assistance in fulfilling the ultimate goal of resolution. However, I have heard about many situations where parties spent considerable sums of money for mediation, felt pressured into resolution and a settlement agreement, and now find that neither side wants to honor the agreement, that it has caused more harm than good, and thus, mediation gets a bad rap.
And now, I think I will get off my soapbox, and go heat up my coffee and begin my day!
Posted by Beth Grimm at 10:29 AM
August 2, 2008
HARDWOOD FLOORS - CREATING A NIGHTMARE ALL OVER CALIFORNIA
This subject crosses over into so many areas in HOAs that I just added it to several categories: enforcement, neighbor-to-neighbor issues, board frustration, owner frustration, legal issues, general CID issues, etc., etc. Here are a bunch of sorry stories sent to me via email and notice the twists:
FROM BOARD MEMBER/OWNER: I am the _________of the ________HOA in _______. A couple years ago we changed our 20 year policy against hardwood floors when one of the owners agreed to install sound-dampening underlayment and get signed “approval” (something akin to a memo of understanding?) that they were OK with the installation. The then-seated board bought into this and now it’s the policy under our architectural guidelines. Now all downstairs units who go to sell after signing the form approving upstairs hard surface flooring have to disclose that agreement to prospective buyers. Personally, I would NEVER sign such an agreement for my upstairs neighbor, but I wonder if she’d sue me for refusing to sign it and thereby not letting her increase the (perceived) value of her unit? It seems like anything is possible in lawsuitland.
This angers me to some extent because I bought a second floor unit (rather than my preferred upstairs choice) because at the time of my purchase the old “no hard surface flor in upstairs units” policy was in effect. Since I wanted hardwood, I had to buy downstairs. Ugh."
UNFORTUNATE DOWNSTAIRS OWNER: I live in the lower unit a condo complex, it's and very small (16 units) and very old building (built in 1950) a few months ago the unit above me was sold and before the new owner moved in she had the carpet removed and the original wood floors refinished....I'm going crazy, I've dealt with it this long because the owner lives alone and I console myself with the fact that she has no children or pets but even with just one person creating the noise it's still a huge problem, she keeps odd hours a frankly the lack of a buffer makes the sound of everything she does travel right into my home. I know she didn't consult the board before doing this because I'm on the three person board, but I also know that our Rules and Regulations don't anything with regards to flooring, only that no noise from one unit should be heard in another unit. I'm worried about how this will affect my property value or ability to rent the unit, especially if she sells or rents to people who do have children or pets.
OWNER LIVING UPSTAIRS THAT CONVERTED TO HARDWOOD FLOORING AND HAD CHANGE IN FAMILY CIRCUMSTANCES: 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."
ANOTHER UNFORTUNATE OWNER LIVING BELOW UNIT THAT CONVERTED TO HARD SURFACE FLOORING: I am the original owner of a condo flat that I purchased 15 years ago. Way back then the original builder wisely did not allow hard surfacing flooring in the above units because of the noise level. It was for this reason that I bought the lower unit and I have been happy ever since.
In September of 2007 the unit above me changed hands. It turns out the buyers wanted to put in hardwood floors. The selling real-estate agent (who happens to sit on the board) consulted the CC&Rs and told the buyers that there was nothing stating that hardwood floors were not allowed in the upper units and further that it wasn't even necessary to apply to the Architectural Review Committee (ARC) to make this improvement. For this reason, the buyer simply bought the unit and then removed the original flooring and put in hardwood everywhere.
Needless to say, this has created a tremendous nuisance of noise in my condo. Several months back I complained to the board. The board responded by telling me was no violation of any process or rule by the installation of the hard surface flooring above and that there is nothing I can do.
I've read the language of the CC&Rs concerning improvements and it clearly states that all Improvements that are affixed to the common building must first be approved by the Architectural Review Committee. When I raised the point with the board that the owners did not go to the ARC process, I was told that after launching my complaint, the ARC reviewed the materials used for the floor and that the ARC would have approved the work anyway so it would not have made a difference if they had gone through the normal process in advance.
In summary, a board member has profited from the sale of a unit that required the rules be bent, the board and the ARC have done nothing to enforce their rules, the members of the ARC know nothing of the original builders restrictions on hard surface flooring nor do they know anything about sound level guidelines etc.
This leaves the ball in my court. I have given my contact info to the owners upstairs but they won't get in touch with me. I suspect they don't want to since they believe they have nothing to gain as they have already installed the floor. The board and the ARC really want to sweep the issue under the rug I'm guessing because they don't want any trouble for themselves.
I wonder if there are any building codes, nuisance laws etc. that may protect me in this case? Is there any California condo law that states the noise level cannot change following installation of new improvements in a neighboring unit? Is the ARC required to inform neighboring units when improvements are seeking approval in another unit? I really think if I can show the new owners/board/ARC that they have violated some rule or process that would allow legal action to be taken, they might do something to remedy the situation.
****
So, here are some key questions that I have answered before, and will answer again:
I wonder if there are any building codes, nuisance laws etc. that may protect me in this case? Is there any California condo law that states the noise level cannot change following installation of new improvements in a neighboring unit? Is the ARC required to inform neighboring units when improvements are seeking approval in another unit?
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 some 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, I recommend the best course of action is to get all of the possibly culpable parties to the table with a good "neutral" party, possibly a mediator or facilitator of some kind - to see if there is any possible resolution short of ending up in court. If you have been reading my blogs on this subject, you will in fact have seen suggestions for EVERYONE involved, whether the victim of the noise or the perpetrator, or the Board of the HOA. Without reiterating every blog, I will go back over the basics.
1. It is my belief that hard surface flooring added in second story units causes many problems, if not on one day or with one set of residents upstairs and downstairs, then in the future with changes in lifestyles/residents.
2. There are certain questions to ask when reviewing these types of issues with the view toward either "presenting" incentives to get the people to the table, or toward taking legal action. These questions include the following: (certainly there may be more in any given situtation but these are the basic starting point):
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?
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.?
And finally, this is a key question that demands honesty:
Are you just part of the problem, or also part of the solution?
If any of the parties can prove the answer to be "yes" to these questions, there may be a case looming in your future.
Possible causes of action include: nuisance damages under the law for public nuisance and any document provisions prohibiting nuisances (yes, even if permission is given for the alteration).
Possible action for breach of fiduciary duty on the part of the board, the architectural committee, or even the developer, if any contributed to the cause of the nuisance by ignoring, refusing to honor, or leaving out architectural review provisions that allowed one party's actions to destroy the quiet enjoyment of the other party or made their home unmarketable or life intolerable.
Possible action for breach of prudent person duty against neighbor who puts modifications into play that destroy one's peace and quiet and make a home unmarketable.
Possible action for breach of fiduciary duty on the part of an HOA board that fails to enforce documents or reasonable standards in those documents.
Possible action for breach of fiduciary duty for inconsistent treatment of owners with regard to flooring alteration matters.
And probably a whole lot more ...
Take heart. These are serious issues. Do not set processes in motion (or lack thereof) that fail to recognize alterations to hard surface flooring in second story units can ruin people's lives. And even in a case where many problems already exist, and parties feel they are at the end of their respective ropes, there are usually additional things that can be done that they did not think of (some are noted in earlier blogs).
Property values are an important subject, of course, but come on ... peace of mind, restraint, understanding, compromise, and human compassion should be more important. Unless a building is CONSTRUCTED in a manner that focusses on eliminating noise between units, alteration of it in any manner that increases noise transmission ranges from risky to downright irresponsible.
This is such a common subject of my blogs, writings, and the emails I get that I have not only written articles and spoken on the subject throughout the Bay Area and some outer reaches, I have developed several publications with further information on the topic. If you check the publications page, you will see several items which include, but are not limited to, the following, that pertain in part or in whole to this topic and other nuisance situations:
BOOK: THE CONDO OWNERS ANSWER BOOK
PRIMERS:
***4 ON ENFORCEMENT INCLUDING ONE THAT FOCUSES SPECIFICALLY ON DIFFICULT NEIGHBOR-TO-NEIGHBOR ISSUES LIKE THIS ONE
***4 ON ARCHITECTURAL CONTROL THAT FOCUS SPECIFICALLY ON ALL MATTERS RELATED TO ARCHITECTURAL APPROVAL, THE PROCESS, PROBLEMS AND FORMS, ac-2 BEING THE ONE MOST TOPICAL AS TO HARD SURFACE FLOORING ISSUES
***E-NEWSLETTER ARTICLES - AVAILABLE IN ARCHIVED FORM - ON THE SUBJECT
These helpful items are available at a very low cost, given the amount of information contained within ... take a peek..... visit THE GURU (at http://www.californiacondoguru.com.
Posted by Beth Grimm at 1:45 PM