Apartment noise

They say good fences make good neighbors, but in New York few of us actually have the luxury of a yard, much less a white picket fence between us and the family next door. Close quarters mean that your neighbors' noxious habits can easily spill into the hall or come pounding through your wall, and can quickly become your problem. How best to handle bad neighbor behavior is a question much older than 311, and one with no easy answer.

Steve Wagner, a real estate attorney with the firm Wagner Berkow who represents co-op and condo residents as well boards, has seen some patterns in neighbor disputes over his decades of practice. He shared with us the five most common sources of co-op building neighbor tension and how best to handle them.

1) Noise

Wagner says that noise comes in three main categories: loud music, banging on the floor or the ceiling, and, ahem, loud sex.

No matter the exact nature of the noise, if your neighbor is causing it, the first step is to try to ask them to quiet down. Wagner advises doing this in "a very friendly way, because things can escalate quickly on this," whether it's because the neighbor is inebriated and in the middle of a house party or the parent of a kid with a lot of energy who happens to need to run across the apartment until 10 p.m.

Wagner advises notifying management early on and talking to your other neighbors to see if they are also bothered. And take a look at your proprietary lease to see what the house rules say about noise. The city noise code specifies maximum levels for sound, and if you need to escalate the complaint to a lawsuit, Wagner explains that it's possible to hire sound consultants to measure the volume of your neighbor's racket. If you go this route, you should check with your neighbors again to see if they're willing to contribute to cover the cost of hiring consultants.

If your board is reluctant to get involved, you could technically withhold your maintenance fee in protest, but doing so could risk violating the terms of your mortgage. The proprietary lease could hold the key to resolving the issue, and it may not happen the way you think. Often house rules specify that a certain percent of apartments' floors should be covered to mute sound, so if that hasn't been done, you may have backup there. Also, you should look back at the renovation history for your own unit, to ensure that no sound muffling materials were removed. If they were, it's on you to replace them.

Lawsuits around noise can be very contentious, and Wagner says, "Very often the one who wins is the one who stays, no matter who wins the case."

Wagner sometimes recommends that clients offer to cover the cost of soundproofing their neighbor's apartment, the thinking being that it'll be cheaper than a big legal battle. So far no one has taken him up on it.

2) Smoking and other odors

A new city law requires apartment buildings to have a smoking policy, and smoking in common areas is banned by law. Proprietary leases should spell out whether smoking is allowed in apartments, and Wagner recommends that boards include a rule saying that it's an individual apartment owner's responsibility to prevent smoke from migrating to common areas and other apartments. Alternatively, Wagner says that the easiest way to make this change is to amend the house rules by board vote. Cooking odors and odors related to hoarding can also be issues.

Wagner recommends first notifying the building's managing agent about the issue, as well as talking to the neighbor, though in the case of hoarding it may not help much. Again it's possible to hire experts to test, in this case tracking the air flow in the relevant areas to pinpoint any leaks and holes that can be plugged. And again, you should talk to your neighbors to compare notes.

"In order to get rid of somebody for odors, and I would think smoke too, you have to show that it really disturbs other people," Wagner says.

He recalls one case of a hoarder who had "horrible odors coming out of his apartment."

"We had a bunch of people come in and testify," Wagner says. "The judge said the testimony that affected him most was the mother who said she wouldn't have other mothers come up with their children because she was embarrassed."

Similarly to dealing with noise, if the smell is coming into your apartment because of some issue with your apartment's construction, fixing it is up to you. If you can convince your building to do the testing because of the broad impact the smell is having, the board could try to bill the offending neighbor for the cost.

3) Airbnb

If you wanted to live next door to a revolving cast of luggage-toting visitors you'd live in a hotel. Proprietary leases typically prohibit short-term guests, and Wagner says, "Nobody complains about anything if you have a sleepover guest for your kid, or you have friends visiting from out of town." Your neighbor using her apartment for a commercial tourism enterprise is something else entirely.

"I always would try to go to the neighbor first," Wagner says. "If the neighbor doesn't do anything, then you could go to the board, and also go to the city and ask them to issue violations."

In addition to being against most buildings' rules, rentals for under 30 days where the apartment resident is not present are illegal in New York, so city inspectors could come in and issue a fine. As always, documentation helps.

"Go online and see if you can find them advertising," Wagner suggests.

A co-op could also start lease termination and eviction proceedings against a tenant-shareholder for short-term rentals.

4) Hoarding

Hoarding is a type of obsessive compulsive disorder that can have far-reaching impacts on the people living around someone who suffers from it. The hoarding, as with other issues discussed here, becomes a habitability violation when it affects the quality of life of other residents.

"If you have a neighbor who is hoarding, generally there are other issues like bedbugs or vermin or sometimes roaches, insects," Wagner says. "These are things that have to be addressed carefully."

Because hoarding is a form of mental illness, the neighborly talk probably won't do much to help here.

"These issues need to be addressed either by social services or psychiatrically," Wagner says. "Even the co-op taking the tenant or tenant-shareholder to court—housing court really isn't set up to address the mental illness aspect of it. It's only set up to address the conditions."

Still, housing court may be your best option. To bolster your case, you should team up with people on your floor, in addition to contacting the board.

Here too there is strength in neighborly numbers: "You're going to need those people to go to court and testify about it," Wagner says.

The court may send in social services workers to clean the apartment, but it may only be a temporary solution. Ultimately the board may pursue what's called a Pullman case, in which the resident gets notice that he's in violation of a building rule and, if he fails to correct it in a certain time frame, gets evicted.

5) Bedbugs

Here the issue is less that your neighbor got bedbugs and more what she is doing about it. Anyone can get an infestation, but how one responds determines whether the bugs die or spread. Often building rules specify how tenant-shareholders must pursue extermination, and, Wagner says, "If the protocol is not followed, the protocol could be grounds for eviction."

That could include not calling an exterminator, or not preparing one's apartment for the exterminator when the building sends one in. The co-op should ask for access to fix the condition, and if the resident doesn't comply, then the board can hold the person responsible.

With this as with all of these issues, "Document everything," Wagner says. "Everything relevant to the issue can be and should be documented contemporaneously. I often will have my clients put a magnet calendar on their refrigerator so they can mark on the calendar the date and time the events occurred."

And don't be afraid to take action.

"Allowing the problem to continue and stewing in it doesn't do anyone any good," Wagner says. "It doesn't stop the problem and it probably gets people more worked up."

New York City real estate attorney Steven Wagner is a founding partner of Wagner, Berkow, & Brandt, with more than 30 years of experience representing co-ops, condos, as well as individual owners and shareholders. To submit a question for this column, click here. To arrange a free 15-minute telephone consultation, send Steve an email or call 646-780-7272


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