Upstairs, Downstairs

Strategies for Dealing with Condo Noise Disputes

By Paul W. Windust, Esq.

Noise disputes among owners can be one of the most troublesome problems community associations and their managers face. Not only can they be expensive to resolve, they can cause community unrest and bad feelings. However, if a community association acts quickly and assertively, it may be able to diffuse the dispute, or at least keep the association out of court.

Noise issues often involve a downstairs owner’s complaints of noise coming from the unit above. This frequently involves floor coverings, or the lack of them. The typical dispute has a common set of facts. An upstairs unit owner decides to upgrade by removing existing carpeting and installing hardwood or some other hard-surface flooring in its place. This upgrade occurs without application or notice to the architectural control committee. The first time the board becomes aware of the problem is when a complaint is made by the owner of the unit below. The usual complaints include increased noise from the upper unit--walking, voices, music, or television sounds.

Not all noise complaints relate to floor coverings. Some buildings lack sufficient soundproofing between adjacent units allowing greater than normal sound transmission. Floor structures can lack sufficient rigidity, causing them to “creak” or “groan” when walked on. But the vast majority of such claims come from a downstairs unit owner reporting elevated noise levels after an upgrade to hard-surface floors. Floor coverings are part of a unit owner’s separate interest. They are not common area and the association will not usually have direct responsibility for their performance as it would with a defective structural element, for example. However, the governing documents may include floor covering provisions as part of the architectural guidelines that the association is charged to enforce. Also, the association can be responsible under the governing documents for abating a “nuisance” regardless of whether the nuisance involves a separate or common interest.

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Editor's note: Paul Windust is a Partner at Berding|Weil. He advises community associations on legal issues and litigation.

Hello Mr Berding,

I'm writing this email to you as a call for help with advice. I read your article on dealing with condo noise complaints. I find myself in a problem with some new neighbors who live below me. They are using their condo like a music studio and I'm noticing the music is on all day long even while I'm probably at work in the daytime. I may have made the mistake by showing my disapproval one night with a baseball bat to my floor and i made it very clear i was trying to sleep , at that time it was around 1am. They lowered it but i could still hear a faint bass, of course when i woke up i could still hear it if i pay close attention to it. So here i am a week later and i find myself stuck in a condo that used to be nice and quiet after the last 6 years Ive been here. My building isn't the best of places, it may also have a bad reputation. I live in Bridgeport,CT. What do you suggest for me. My parents are owners of my condo and i pay the mortgage and common charges, when my credit gets better they can turn over the condo to me. I hear so many negative things about the condo board(association) and i know sometimes the police wants nothing to do with it. This problem started just 7 days ago and i feel like I'm going to erupt. Ive been going to the gym to keep my blood pressure from getting high. By your article, you seem to understand my situation, "noise is in the ear of the beholder". I know its not just me but i can see how no one will understand. Thank you.

Paul A
Bridgeport,CT.

Paul, 

As the article states, noise issues are very pervasive in condo living, and are sometimes the most difficult problem to solve. First, I'm not a Connecticut attorney, so if this continues, I advise you to seek the counsel of an attorney in Bridgeport who specializes in condominium law. Your local chapter of the Community Associations Institute (CAI) can help with a referral. 

Condominiums are not usually built with noise problems in mind. Their structure is not much different than an apartment house, in fact, your building may have started life that way. So when you live under or over someone else in a condominium, the chances of your daily activities being heard by your neighbors is pretty likely when it is above normal volume. 

Having said that, no one is permitted to become a "nuisance" to anyone else. What qualifies as a nuisance is defined in each state's law, but most states have provisions against nuisances and permit an owner to apply to the police or the local courts to abate (end) the nuisance. In most states, high levels of noise for extended periods usually qualifies as a nuisance. Again, consult with a local attorney on the best avenue for assistance.

Your community association governing documents (CC&Rs, Bylaws, etc) probably have some provisions relating to nuisances, but whether they require the association to act upon it depends on the documents. The governing documents may also provide a separate basis for abating the nuisance which you can enforce yourself. If you consult a Bridgeport attorney specializing in community association law, he or she can review those documents and advise you on your rights and enforcement options.

Tyler

Traps for the Unwary

What you don’t know about your CCRs, your Budget, and your Buildings

    The responsibility for building maintenance and repairs in a community association most often falls to the Board of Directors of the association as assisted by the community association manager. It’s an awesome responsibility in that
the economic well-being of the owners
 is often co-extensive with the health
of the building. But maintaining any building properly requires a very sophisticated understanding of building components. Maintaining a community association building also requires a thorough understanding
of the association’s governing and budget documents.

But buildings, budgets and governing documents are not always what
they seem—they can contain traps for the unwary. Community associations are prisoners of their budgets. Nothing can be repaired without adequate funding. Proper funding, in turn, is dependent upon a proper analysis of the maintenance and repair requirements of a particular building. If the conditions of the building are not properly reflected in the budget, the association will not be able to adequately maintain the project.

The “traps” in buildings can be placed there accidently or intentionally.
The “traps” in governing documents are almost always intentional. In
either case it is essential for boards and managers to be aware of them
and to know how to avoid the pitfalls they present...

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Left Holding the (Sand) Bag

Who will Pay for the Damage Caused by Rising Sea Levels?

It Could be Your Homeowners Association!

The San Jose Mercury News (June 13, 2010): “From Antioch to North Richmond to Redwood City, a slowly rising Bay could endanger the properties of as many as 270,000 Bay Area residents and cause some $56.5 billion in damage by the end of the century unless measures are taken to protect them, scientists warn. But surprisingly, few cities are taking action”
____________________

“November 5, 2008…In the event of projected flooding sandbags are available at the Benicia Corporation Yard. Some assistance may be available but residents should bring shovels and plan to fill and load the bags themselves.” (City of Benicia website)

The chance of flooding in cities in and around San Francisco Bay is not just speculation. It has happened many times in the past and it will happen again and again if sea levels continue to rise or a “perfect” storm joins with normal high tides. It’s easy to see why. Take a look at one of the several interactive devices used to illustrate the first areas around the bay that will flood when the sea rises. It should come as no surprise that they are the same locations where the bay was originally filled to create housing and commercial developments. These low-lying areas—Redwood Shores, Alameda, Vallejo, Alviso and many others—were bay bottom and tidelands just a few decades ago. Now there are thousands of homes. The flood danger is obvious.

And, thousands of new homes are projected for a dozen or more major developments being proposed for additional tidelands and other low-lying locations around the bay:

“At least 12 major developments with as many as 56,000 new homes are planned at the edge of the Bay over the next 5 to 20 years…many are in low-lying areas experts say are potentially vulnerable to flooding associated with long-term sea level rise. Some cities and counties have strategies to deal with that problem, others do not.” (San Jose Mercury News)

But what is different today from developments built, say, three or more decades ago is that many of these new developments will be built as community associations and many of the expensive engineered facilities necessary to protect these developments from storms, rising tides and sea levels will not be owned by cities or the state, but instead will be the responsibility of homeowners...

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The Great Foreclosure Debate, Part IV

Lenders' Reluctance to Foreclose is Crippling Community Associations

The Contra Costa Times, May 25, 2010: “Tens of thousands of homes in the East Bay are in foreclosure or are owned by banks. Some sit empty; a few are boarded up. Beyond the squatters and over-grown yards blighting neighborhoods, the glut of bank-owned homes means years of decline in the property taxes on which cities, schools and the state of California depend.”

     Sound familiar? Of course it does, because the same economic forces are wreaking havoc with the budgets of community associations. The article continues:

     “Foreclosed houses do not obtain lower property tax assessments until banks sell them. So tax revenue will keep falling until banks sell all the houses they end up with, creating a long-term lower tax base.” Basically this means that no one will know the full extent of this economic crisis until all of those foreclosed homes are re-assessed at dramatically lower values resulting in dramatically lower property taxes being paid over a long term.

     But there is another result as well. Property taxes upon which local governments are dependent may not be re-assessed until the banks sell the properties, but homes in community associations that are in foreclosure for non-payment of the monthly mortgage most likely are also delinquent in their homeowner assessments. Banks don’t start paying these assessments until they actually complete foreclosure and obtain title.

     The article states: “In the East Bay, banks own more than 10,000 homes, only a fraction of which are listed for sale. Another 20,000 are in foreclosure headed toward bank ownership.” But “headed toward bank ownership” is not bank ownership, and until the foreclosure is completed, the banks pay nothing toward the costs of maintaining the home which community associations must continue to pay. A healthy fraction of those 20,000 homes are in community associations and while the bank foreclosure process slowly continues, no assessments are being paid.

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An Overview of the Unexpected

The Big Surprise--Major Reconstruction in Community Associations

Every community association will face a major reconstruction project several times in the life of the development. This may occur because of clearly anticipated problems, such as re-roofing or re-painting, but it also will occur because of completely unanticipated (and unreserved-for) problems such as dry rot repair, soil subsidence, and leaks in windows, siding, and foundations. The Davis-Stirling Act only requires that a community association reserve for those components that visual inspections into accessible areas reveal have a useful life of 30 years or less. 

But what about components in areas that are not visible or accessible? What about areas under staircases that sponsor dry rot due to long-term intrusion of water? Framing components under siding that have allowed water to enter slowly for years without any way to get it out except evaporation? Deteriorating concrete walkways or driveways due to the invasion of roots or soil subsidence due to unconsolidated fill? Or, balcony railings rotting off at their interior supports? As the last post revealed, three people in Antioch were severely injured recently when such a railing collapsed. 


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A Wakeup Call

      Failed balcony railing causes near-fatal injuries

     

     Can we ever take the condition of a building for granted? Do we? The building occupants, to get in and out of their units on second and higher stories, use components like balconies and staircases every day. Do we really know if they are safe? As property managers or board members of community associations, how can you be sure? When was the last time someone took a professional, in depth look at those parts of your buildings?

     We know from reading dozens of expert investigations that quite often some of the most insidious problems are hidden from view—for example, weaknesses in structural components that are used every day. This is especially true in older apartment complexes that have been converted to condominiums. Years of neglect by the apartment owners are passed on to the condominium buyers with no warnings or disclosures.

            

     Now we find a similar situation that almost turned to tragedy:

            KRON TV News, April 1, 2010

ANTIOCH (BCN) -- Building inspectors found evidence of dry rot at an apartment complex in Antioch where three people fell from a second-floor balcony Thursday morning after a wooden railing gave way, Antioch code enforcement manager Ryan Graham said.  As a result, he said, the residents of three units at the complex will have to be temporarily relocated. The fall occurred at about 7:30 a.m. at the Twin Creek Apartments at 1111 James Donlan Blvd.  Contra Costa County Fire Protection District Battalion Chief Alan Hartford said the victims are two women and a young girl about 8 or 9 years old.            

            "They were leaning against a railing and the railing gave way," Hartford said. The three fell about 15 feet to the ground below, an area with dirt and bushes, he said. One woman, who may have briefly lost consciousness, appeared to have suffered head, neck and back injuries and was airlifted to John Muir Medical Center in Walnut Creek, Hartford said. The second woman and the girl were taken to hospitals by ground ambulance. The victims are all expected to survive, Hartford said. He said the little girl was the least injured.

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The Great Foreclosure Debate, Part III

The article below was sent to us by Mark Benson, a community association expert in Florida. His thoughts provide additional perspective on the continuing debate over assessment foreclosures and the effect of non-foreclosure policies on the remaining owners.

Unintended Consequences for Community Associations in Florida and Nationwide

Again we hear about the largess of the government putting a moratorium on foreclosures of the first mortgage.

On the surface, this sounds benevolent.  Now let's look at the realities.

1.  If the home is in a condominium, homeowner association or co-op, they are probably also not paying maintenance fees.  This means the other owners must continue to subsidize the mandatory expenses of the association.  

2.  The moratorium of mortgage foreclosures creates an ongoing obligation to the association that continues to increase with interest, late fees and legal fees.  These are extinguished when the mortgagee finally takes title. The condominium association will get reimbursed 6 months of maintenance fees or 1% of the mortgage amount, whichever is less.  A homeowner association will get reimbursed 12 months maintenance fees or 1% of the mortgage amount, whichever is less.

3.  This will increase the delinquent amount for each month’s payment missed plus interest and penalties to the extent it will be impossible for the homeowner to recover.

Typically, this is a minimal amount compared to what is owed and is compounded by delays in foreclosures.

An association may institute foreclosure and take title to the unit but the mortgage still has priority.  Therefore, if the association takes title and rents out the unit they may get the rent but the mortgagee will eventually foreclose against the association.

In order to accomplish this the association may also incur thousands of dollars of fees and costs that may not be recoverable. 

4.  There is no incentive for an under-water owner to make any mortgage, tax or maintenance fee payments since it may be years before they are foreclosed out of the property.

5. There is no incentive for a mortgagee to foreclose and incur attorney fees and then be stuck with a property worth only 50% of the outstanding balance due.  They have a huge backlog of property now and the courts are still jammed with pending cases.

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