February 20, 2008
More on Noise - Can a Developer Be Held Responsible?
Just today, during my HOACHAT at noon on issues including noise and hard surface floors (which is a free offering you can join on Wednesdays through my website at http://www.californiacondoguru.com) one of the "attendees" asked: "Can a developer have responsibility when there are noise issues through the walls and floors of a condo?
Noise is a problem in many stacked and wall-to-wall condos. Sometimes alternations and modifications are made by owners in condos that were not meant for hard surface floors. But that is for another blog.
Sometimes a developer will tell you that space is left between the walls of the adjoining condos and that reduces the noise (well, sometimes they will say it eliminates noise transmission but I think that anyone - including me - that has lived in such a condo situation and fell for that line knows better). Sometimes the developer will say, "Sure choosing the laminate flooring upgrade is fine because we add soundproofing," and you think - "Great!" ... And you buy, ... and then experience - "not so great results." I wrote an earlier blog suggesting that the extra money developers collect for installing laminate or hardwood floors in stacked units or townhouses should be placed into a fund to be used later to mediate flooring noise issues. Maybe this sounded like a "flip" comment, but ... why not?
And the answer of course is "Yes", a developer can have some responsibility. And that is apparently what happened in a Colorado case back in 2005. The case took place in Arapahoe County Colorado and it is reported that some of the residents were awarded punitive damages against the developer (as much as $150,000 each, plus costs of trial) and others settled with the developer before the matter came to trial. The owners' attorney's name as reported is David TeSelle. The articles say that the developer had to outfit units with soundproofing materials
I am not representing that this case controls anything in the legal arena, and there is always more to anything than meets the eye. If there were lots of big cases granting damages for noise pollution, builders and architects would have moved noise control to the top of the list of concerns. It does not appear to me that this has occurred, because the noise complaints continue to rage all around the state and in fact, in the nation. I have not located appellate level cases on this subject but feel free to send me some if you read this and know of some so I can add them to my musings.
But I am saying take heart, anyone can be sued for anything, and (hopefully) in matters that escalate to litigation, the culbable party or parties will be "outed" and have to compensate those that are wronged or taken advantage of. I am a California attorney and do not know Colorado law, or the particulars in the Arapahoe County case; however, further research could be done if one wanted to find out more.
My point in discussing this case and this topic is to say that developers need to get on board. And owners need to speak up, to the developer, to the homeowners association, and to each other, if there are noise issues in your building (unless, of course, you want to "move out quietly").
If you visit http://rismedia.com you can find an article about buyers and sellers combatting noise issues, and the gist of the article is that condo builders and architects should take heed. Certain building design and construction is critical if one wants to seriously reduce or eliminate noise transmission between the units.
The article says that while developers or architects might at first refuse to make noise isolation issues a priority because of the cost, they may come to their senses the next time around and spend the money, if they are plagued with complaints from the residents of a building they were responsible for. The article acknowledges that "Quiet does not happen by accident, it has to be engineered ..." and suggests that when you are thinking of buying a condo, it makes sense to set up a sound test, like making sure the neighboring toilets are flushed, the jacuzzi tub next door is filled (and I assume the jets are turned on), the neighbors walk around in their usual foot attire, and run televisions and sound systems.
Nice thought, but it could certainly slow down sales, in more ways than one, especially if potential buyers are given access to current resident neighbors. Short of such a comprehensive test, I think it wise to make sure you have the opportunity to go into a unit during the day, and at night as well, that is next door to a condo with active kids, even if it is not the one you are slated to buy. There is a probably a very good reason that "models" are often built close together and often isolated from the "inhabited" condos or townhouses.
Is it fair to expect a noise-pollution free environment in a condo or townhome? Maybe, if you are willing to pay a premium for it, but in most cases, probably not. But it should be fair to expect that you will not hear the neighbors whispering, talking at low volume, getting a drink of water, having sex, watching TV at a reasonable volume level. If you want more protection, ask developers about the construction of the walls, floors, and ceiling, and whether there is any vibration reducing construction, and write it down, and then talk to an accoustic specialist. This bit of information might help you if you want some more comprehensive research before buying. And accoustics specialists can also be located on the web.
Noise isolation and control may be moving up the priority list of amenities, and well it should. New technology encourages wall mounted window sized TVs, and surround sound systems.
Noise disputes are never easily resolvable, and they make people do things they would not otherwise ever consider doing! And worst of all, they make people sick! If you do not believe me, visit http://newscientist.com and read the articles including one entitled "Hidden Harm from Noise Pollution". In the article which appears in issue 2365 of the New Science magazine, December 22, 2007, the article claims: "Noise kills in much the same way as chronic stress does, by causing an accumulation of stress hormones, inflammation and changes in body chemistry that eventually lead to problems such as impaired blood circulation and heart attacks."
Now, don't get me wrong because while I am saying that noise pollution or transmission disturbances in condos and townhomes can be insidious and must be taken seriously, I also believe that all parties should work toward resolving the issues by means other than litigation. Just because there is noise, and just because it is disturbing, that does not mean there will be big bucks in your future. Visit earlier blogs to help sort out how culpability might be determined, and do not expect that this will be the last blog on the subject.
Posted by Beth Grimm at 8:54 PM
February 14, 2008
STOP THAT INFERNAL WALKING!
This is my 301st blog! Thought it worthy of some unusual step. Since I have on my plate neighbor to neighbor issues today, I decided to give neighbors their own category on this blog.
So, to kick off this special day, I have more to offer in the way of determining fault, options (or lack thereof) and solutions (to the extent there are any) on issues noise related - namely, to hard surface flooring. By the way, if any of you out there are claiming that you cannot live below carpetted-properly padded unstairs rooms, consider yourself lucky, because there is a whole world of unhappy owners out there living under hard surface flooring, and its getting worse every day because there are more and more and .... (well,. this seems a good place to stop with the madness).
So here is the latest that has come to my attention. Different sources sent me an article entitled "The Case of the Upstairs Condominium" apparently written by a flooring person or an attorney, I am not sure which. None of the parties identified the source of the article (naughty naughty) so I do not know who to thank (except if your initials are DLW give me a call or an email and identify yourself, and I will give you full credit). You may be asking me what a flooring person and an attorney could have in common. The article said that the person had received several calls in recent months from homeowners and homeowner association boards about noise issues related to hard surface flooring. That could be a flooring person or an attorney, right?
Anyway, to get to the point, the article talked about a "test" that can be performed to test "the level of noise transmitted through the assembly ..." of a sound level meter. It takes a specially trained accoustics specialist to read the noise from upstairs created by a specialized piece of equipment called "a tapping machine". This machine, according to the article, imitates the impact on the upstairs floor created by a person walking. The measurement from this test can be expressed as a single number that is called "Impact Insulation Class". According to the article (and by referring to it, I guess I cannot be "blamed" by anyone if this is incorrect information), California's "Title 24 Standards require that floor/ceiling separation assemblies between units in miltifamily developments achieve an 'IIC' rating of not less than 45 when field tested."
So I will add this to my list of considerations published earlier, when one is considering what to do about a noise problem related to hard surface flooring, which (now) is reiterated in a (new) list of questions to ask. As for the HOA, the developer, the flooring installer, or any other party that might be confronted with a noise-flooring issue 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?
**Has anyone arranged for an "IIC" or other flooring impact analysis test to be done?
**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?
I cannot say that this "IIC" test will make or break any situation. First of all, I do not know if it is well recognized in the industry and by the courts (feel free to send me info on this). And, I do not believe it is necessarily the end of the inquiry. As described, it presents a test with a minimum standard, and I for one believe that the standards for condos should be higher than apartments because if someone does not like the upstairs noise in an apartment, they can move. They have little to lose. When one purchases a condo, the solution is much more complicated. If they remain quiet, they risk having a disclosure issue come up after sale. If they make noise, they risk creating an issue where one might not be there for the next person. Believe me, peoples' tolerance levels seem to be all over the map - and when "friends" live upstairs, people are much more tolerant than if they have nothing in common with the upstairs neighbors.
But, the saga continues. And I will continue to say that if attorneys continue to tell developers not to put limitations on hard surface flooring un upper stacked units, and attorneys continue to tell HOAs not to put stringent limitations and standards on the installation of hard surface flooring, and owners continue to be discourteous (like placing speakers on hardwood floors and turning up the base, like refusing to try any form of carpet or padded runners in traffic areas, like giving the neighbor who complains the finger instead of listening to what they have to say), the problems will not go away.
Of course, before condemning attorneys, I should say that the attorney does not make the ultimate decision on what goes into the governing document or the rules or standards. The developers and HOA boards do that. In every set of docs I have written in the past 20 years (ugh, has it been that long) that involves stacked units, I have advised boards to put some limitations or restrictions on hard surface flooring in the upper units. More than half, probably more than 90% (I lost count) have heeded my words and done it, but those that rejected my suggestion either could not fathom that it could ever raise an issue, have put property values ahead of human values, or have had or were considering converting to hardwood or laminate floors. Had they put limitations on the flooring, at least, if the HOA did not want to spend the money to sue someone who installed hard surface floors without getting approval, the neighbor below would have a potential remedy for the violation of the documents. However, this sometimes falls on deaf ears.
It seems simple to me. If there is a prohibition on installing hard surface flooring in upstairs units, or there are standards involving installation of cork or some good form of padding below the new floor, or developers go the extra mile to add good and true soundproofing materials below hard surface or laminate flooring, it eliminates a major problem. That problem is the awful situation that occurs when the parties might otherwise be willing to resolve the issues but are left looking at major reconstruction (raising other potentially serious issues) involving both the upstairs and downstairs units as the only remedy.
People. Wake up!
Posted by Beth Grimm at 11:18 AM
June 17, 2005
What To Do About the Idiot Neighbor - Or - How To Succeed Without A Lawyer
I read the blog with interest that ended with the question "If anyone has any ideas about what to do with the idiot neighbor, I'd like to know." Since I represent individual owners in legal matters as well as associations, I often hear folks complain about the idiot owner, the idiot manager, the idiot tenant, the idiot board member, the idiot neighbor, and sometimes even their idiot lawyer. Often, by the time they get to me, they are exasperated, frustrated and feel they are without options. Sometimes they are entrenched in litigation and want out so bad they can taste it, because it isn't satisfying their "need for justice"; to the contrary, it is draining and exhausting them, financially and emotionally.
So here are a few things to try first, for any dealing with any idiots.
1. Try talking to them, if they are not scary.
2. If they are scary, you might want to consider selling right away, or alternatively, getting the neighborhood involved through neighborhood watch, help from the police, the board, and a savvy attorney, organized and working together to eliminate the problem from the neighborhood (not easy but often do-able). Idiots (and especially criminals) do not like to be watched.
2. For noise issues (or other nuisance-type issues), if talking does nothing, and the noise issue or nuisance is truly unreasonable, try the local no cost or low cost mediation service in your town or county. In California, there are such organizations supported by a portion of the funds paid to file a court action. Believe me, good mediators are usually trained to deal with idiots. ("We" call them "difficult people" though, and there is lots of training available). Sometimes a mediator can even lead an idiot into looking and feeling like an idiot if they are squirrelly enough and then they start to get more "pliable". Sometimes people do not realize they are being idiots until someone "helps" them see it.
3. Unreasonably loud noise, junk and crap in the front yard, barking dogs, dilapidated vehicles parked on the lawn and other such problems are private nuisances (if they only affect a neighbor) and public nuisances (if they affect all who pass by). They are actionable (meaning it is possible damages could be awarded or a court order to stop the conduct could be arranged) in a court of law. Small claims court is a reasonable forum to test your own theory that it (whatever is occurring) is a nuisance. It's cheap, and quick. If you get a favorable judgment on just one occasion, the idiot next door will probably change their conduct. A trip down to the SC Court is generally a real pain in the rear (unless you like people watching as a sport). However, it can nip bad conduct in the bud. One example of a suggestion that I can mention was for an owner (who could not afford an attorney) who lived on the second floor of a condo building surrounding the pool area. She was unable to enjoy her balcony in the evenings. It seemed that the manager, once off duty, would "cavort" (strongest word I can use in public) in the pool or on the pool deck with her boyfriend and engage in embarrassing conduct (embarrassing for everyone else, apparently not for her). I suggested the owner videotape the pool activities and take the tape into small claims court and ask for compensation for the nuisance. It was cheaper than paying an attorney to write a letter and god knows, I would not especially want to be the voyeur that had to describe the conduct in court! And I felt that if the manager did not want to be videotaped, she would stop "cavorting" in public. So it did not require any secret videotaping. The woman called me back and said that her investment in a camera paid off. This can work some other situations as well.
4. Recognize that they are an idiot, if they truly are, consider this: if you think they are there for the long term, it might be better to sell your place before starting a battle that elevates to the point where you have to disclose it when you try to sell the place.
5. If there is an Association and the conduct constitutes a violation of existing rules or other governing documents (and note, there is almost always a nuisance provision), notify the Association and ask that the rule be enforced. Of course, if the person is an idiot the board may have no more of a clue than you do how to solve the issues. And if the Board members turn out to be idiots too, you may end up paying the cost as a member of the association without having any control over the situation.
6. Keep in mind that some might view you as the idiot so try to see the picture through their eyes for a moment, just in case.
I have other ideas, like advising a board to set up a video camera at meetings if owners get out of hand regularly and the directors cannot get through business without incessant interruptions. Even if they goof up the taping of the meeting, it probably won't matter because the video camera if set up facing the audience in the room will probably serve as a deterrent to kindergarten conduct. However, I have to warn the Board members that if they don't know what they are doing and tape themselves breaking the law, or looking imcompetent, that is not good. And if the Board tapes a meeting it will likely trigger a demand by owners to tape meetings, and that gets into legal arguments as to whether owners have a right to tape meetings or not. The laws are different in different states so beware of who you quote. Some say yes and some say no -- and some are right.
I suggest to neighbors who are bothered by neighbor's (or their own for that matter) dog barking that they purchase a device that is advertised to stop a dog within so many feet from barking because of the emission of a high pitched sound that is undesirable to dogs but that humans cannot hear. I see these devices in the Skymall Magazine every time I fly (its on the web too). I think that's a fair tool. As for California questions, I advise neighbors bothered by unreasonable barking that if 3 neighbors within a certain number of feet from the dwelling of the barking dog culprit complain to animal control, animal control staff are supposed to report that to the District Attorney in the County and the DA can bring charges. (I doubt they often do but the fact that there is a law that allows for that is often enough of a deterrent to the barking dog's "master".)
I advise neighbors who are bothered by those idiots or criminals who are making their lives miserable to join together (assuming there is evidence of some nuisance activity going on) and file individual small claims actions against the owner of the home where the problem people live. (I find that the worst problem people are usually renters and this is the way to get the owners attention.) I suggest asking for the max (in California, its $5,000 in most cases) amount of damages, one claim per family member, per family, and see what happens. This puts the owner in the position of facing a multi-thousand dollar judgment instead of a $100 fine. At the very least, it tends to get the owner's undivided attention for the entire morning or afternoon sitting in small claims court with all the neighbors glaring at them. However, don't overstep this with an idiotic complaint or a gross lack of evidence or testimony about specifics or the judge or court referee might be so unsympathetic as to find a way to make you pay (or suffer).
Well, that's about all I have time for at the moment. These are all remedies that for the most part do not require an attorney ("even better" you say). Of course, the help of a knowlegeable, savvy, non-litigation minded attorney is worth every penny in situations involving idiots ... For more, visit the californiacondoguru!
Posted by Beth Grimm at 2:07 PM