I moved into an apartment on a low floor in a Midtown co-op building in Midtown. Every Wednesday and Thursday, from midnight to 3 a.m., a recycling machine that's near my unit makes extremely loud noises and vibrations. The super and management say no one else has complained about it, but it's disrupting my sleep and causing me a lot of stress. What can I do?
The city's warranty of habitability guarantees apartment co-op owners and renters to a safe and livable apartment, and building noise that prevents you from sleeping at night may be a breach of this guarantee.
But in order to prove a breach, you need hard evidence that the noise or the vibrations are at a level that is unacceptable. Most judges see noise as a subjective matter, and require proof that it's well above normal levels.
"You need to hire an acoustical engineer to come in and determine whether the noise and vibrations in the apartment exceeds city noise codes," says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations (and FYI, a Brick sponsor). "There are some apps you can get on your phone to do initial testing for decibel level, but that doesn't hold up in court."
Hiring an acoustical engineer won't be cheap—expect to pay in the thousands for these services—but this kind of expert will be able to prove if the racket in your apartment is a breach of the warranty of habitability. (They'll also be able to testify on your behalf in court, if it comes to that.)
If the engineer finds there is, in fact, a violation of city code, inform your co-op board that they are legally obligated to remedy the situation.
"Advise the board that the noise and vibration emanating from the recycling equipment is breaching the warranty of habitability, and request that the board either have the equipment modified so it does not emit an unreasonable level of noise and vibration, or have the equipment run at a more reasonable hour," says Jeffrey Reich, a partner in the law firm of Schwartz Sladkus Reich Greenberg Atlas.
If the board refuses to accommodate your request, you can escalate by stopping payments on your monthly maintenance fees.
"The shareholder can notify the cooperative board that they will withhold all maintenance payments until the issue has been resolved, and may commence a housing court action to compel the cooperative board to take such action as may be necessary to address the nuisance condition," Reich says.
However, note that doing this comes with potentially serious consequences.
"If you have a mortgage, the co-op can go to bank and say that you're in breach because you haven't paid maintenance," says Kevin McConnell, a partner with Himmelstein, McConnell, Gribben, Donoghue & Joseph. "They may have an agreement with lender that if there's a breach of the lease, there's also breach of the mortgage agreement. The bank can pay maintenance on your behalf and add it to your note, and eventually foreclose."
You run a similar risk if you don't have a mortgage, he adds. The co-op can start a procedure called non-judicial foreclosure, and notify you that if you don't pay maintenance by a certain date, they can auction your home.
In both these cases, you could respond by filing an injunction in state Supreme Court and make your case about the warranty of habitability violation.
Another remedy is to file an HP action in housing court. In either case, you'll want legal representation, especially if you'll be having an expert witness like an acoustical engineer testify in court. This will get expensive, but if you prevail, you may be able to have legal fees covered.
"The language of the co-op's proprietary lease may include that you can recover your legal fees if you're successful in court," Himmelstein says. "But if you lose the HP case, depending on the language of the lease, you could be liable for the co op's legal fees."
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