May 18, 2008
Retaliation is Never The Answer
Your neighbor is driving you crazy. It's the clack clack clack of the high heeled shoes and the long nails on the family dog on the tile floors above, or the thump thump thump and bang bang bang of the children running and jumping, opening and closing the doors. You have contacted the board, and been told there is not much that can be done about normal daytime noise. So, you decide to "get back" at the neighbors.
Think before you leap. Here's a true story.
It started in a condominum development for seniors. A beautiful downstairs unit came up for sale. The elderly couple, looking forward to retirement in this beautiful community was checking out the unit. The realtor was embarrassed because the resident that lived upstairs seemed to be walking around with heavy loud footsteps. She mentioned that the lady was 85, and must be wearing hard shoes. As it was, this had happened before. In fact, the seller had made a disclosure about the footfalls, stating that although there was only one resident, and she was about 85, the downstairs neighbors could hear the footfalls. Apparently, this woman had established that she did not want downstairs neighbors. Realtors showing the place had come to that conclusion because she was always home, and always "sstomping" around when the lower unit was being showed. However, one couple - potential buyers - were not deterred. They loved the place, and the buyers had discounted the price and were really motivated. So they bought the place. They told the realtor that they would just make friends with the woman upstairs, take cookies, get to know her and ask her to wear lighter sole shoes, or put down some rugs.
Months later, they came to the board. Neither the cookies nor the attempts to make friends worked. The couple asked the board to do something. The Board sent a letter to the woman upstairs and asked some questions, pointing out the problem. Suggestions were made that the woman (aka the 'stomper') wear softer soled shoes, house slippers, or place padded runners in the traffic areas of her unit.
Meantime, the neighbors below like the occasional "barbecued" dinner. They had moved in a gas grill onto their patio and grilled every Wednesday, once a week, like clockwork. The 'stomper' instead of agreeing to make any changes, said that she wore soft soled shoes, that she had rugs, and that she walked on them instead of the hardwood floors.
And, it appeared that the neighbor's complaints incensed her. So she complained about the barbecuing. She wrote to the board and said that it complicated her allergies and she wanted it to stop. In response to the letter to the below neighbors, the Board was told they only did it once a week. That did not seem unreasonable; the Board suggested that on Wednesdays, the stomper keep her balcony door closed. Instead, she took to sweeping her balcony and watering her balcony plants (I should say overwatering) on Wednesday evenings, when the below neighbors were barbecuing. Once they got 'wind' that the stomper hated the barbecuing, they started doing it every night.
Once again, the Board was contacted with the complaint about the barbecuing. The 'stomper' had hired an attorney and the attorney wrote and asked the board to put a development-wide moratorium on barbecuing.
That was clearly overkill. And the Board said "no". However, the Board did propose a solution. The Board arranged to have weatherstripping replaced on the stomper's slider since she was claiming the barbecue smoke seeped into her unit. And the Board wrote to the parties with these demands: the stomper was to look for a way to quiet the footfalls (such as adding traffic area rugs and padding or wearing soft soled shoes) and the barbecuing couple was told to move the barbecue to the other side of their home on a porch, so it would not be below the stomper's balcony.
Neither party complied. Both retaliated. The stomper started sweeping the balcony when the neighbors barbecued. They started barbecuing every night instead of their once or twice a week prior habit. The upstairs neighbor started taking a shower every night late, claiming that she had to wash off the barbecue smoke that had intruded. The downstairs neighbors started flushing their toilet while she was in the shower and turned their TV up loud afterwards. It went on and on.
Then they sued each other. Both sides had insurance carriers get involved. The carriers and the court had a hard time with this one. You just cannot always regulate human behavior, or get people to act reasonably.
Much money was spent. At one point the insurors came to the Board for architectural approval with something they thought might solve at least part of the problem - they had arranged for a specially designed barbecue with a smokestack. The Board denied the application as it did not want a large orange smokestack going up the side of the building where the golfers would have to look at it. It was "back to the drawing board" in the court process.
Eventually the judge "nonsuited" the parties, kicking them out of court, essentially. The newspaper touted "Judge Douses Barbecue Suit".
Even that was not the end. Both parties came back and demanded a Board hearing. All parties were "invited" to come to a board meeting. They brought their attorneys and their doctor statements and the below neighbor brought a DVD of the interview with his doctor stating how his health had declined. The Board's solution - one of the board members would meet with the parties in an attempt to get back some semblance of peace if, and only if, the parties would meet with a mediator or social services rep (they were all elderly), together, to talk.
Neither party would go in the same room with the other. The Board opted out of this. The lawyers threatened to sue the Board, the Board's attorney (me) mailed them the "Judge Douses Suit" story, and that might have seemed the end of it. It was not.
The husband of the couple below died, the wife sold their home and moved back to where their children lived, on the East Coast. I suspect they had to take a considerable loss since they had not only experienced, but exacerbated the situation of the "nuisance" upstairs. The stomper died.
End of Story....Do you want to end up in the same place? Then eliminate retaliation as one of your means of dealing with a difficult nuiance situation.
Posted by Beth Grimm at 9:52 PM
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 9:06 PM
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