The co-op owner above me does not have any rugs on her floors, which is against the rules, I think. She has a toddler who makes lot of noise and she refuses to allow anyone in to inspect her floors. Can I withhold my maintenance payments until management addresses the issue?
If you can prove the level of noise is unreasonable, your co-op board will be obligated to address the issue, our experts say—but withholding your maintenance payments could end up landing you in hot water.
First, note that while many New Yorkers assume that co-ops have a standard rule that requires 80 percent of the floor area in an apartment to be covered—with a rug or carpet—this isn't always the case. Floor covering rules can vary from building to building.
Floor covering rules aside, an excessive amount of noise could violate the warranty of habitability, which protects every co-op resident and guarantees the right to a a safe and livable apartment.
"If there was a situation where noise transmission from one apartment to another rose to a level that would prevent a resident from safely living in an apartment, the affected resident would be entitled to have the situation rectified and to receive an abatement of the maintenance until the situation had been resolved," says Jeffrey Reich, a partner in the law firm of Schwartz Sladkus Reich Greenberg Atlas.
"However, a toddler running, playing, and babbling would not likely rise to the level of a break of the warranty of habitability, and a shareholder who decided to withhold maintenance payments in connection with such noises would potentially subject themselves to a nonpayment proceeding."
Rather than withhold maintenance, and risk ending up in arrears, begin by reaching out to building management, and consider speaking with an attorney.
"I would first start with the management company, and if they do not answer in an affirmative way, you can indicate that you may have to employ an attorney to protect your right to quiet enjoyment and to make sure that your neighbor is following the rules," says Deanna Kory, a broker with Corcoran.
In contacting the board, you could also ask if a member of the building staff could come to your apartment and hear the racket for themselves.
"Alert the board of the issue in writing and to ask the board to make members or building staff available to come to the apartment when the complained of noises could be heard," Reich says. "If the affected resident is able to establish that the complained of noises were, in fact, unreasonable, the board would have an obligation to address the issue with the upstairs neighbor."
It may be worth keeping in mind, too, the sometimes noisy realities of living in a multi-dwelling building in a large city. Way back in 1943, for instance, a judge ruled against an apartment resident who complained about a neighbor's piano playing.
"Apartment-house living in a metropolitan area is attended with certain well-known inconveniences and discomforts. The peace and quiet of a rural estate or the sylvan silence of a mountain lodge cannot be expected in a multiple dwelling," the judge says.
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