09/30/08: Dealing With Troublesome Condo Owners

Housing Counsel

By Benny L. Kass

Q: I own a condo in which my tenants have complained to the police about domestic violence from their upstairs neighbors. When the police arrive, the neighbors say, “we were asleep.” My problem is proving the conditions. I have taken the complaint to our Condominium Board and a pre-fine hearing was held. At the hearing, the owner showed up with his tenants when he was the only one invited. Naturally his tenants denied everything and hinted it was just TV noise. A letter was sent by the Board to the owner indicating he should place mats under his tenant’s TV. My tenant insists it is not just TV. Threats and slams against the wall have been heard. My tenant says he knows the difference between loud fights and a TV. I gave the police incident reports to the Board, which show little detail, only a date and the officer’s name and a numerical code (later learned it was V for violence). The Board is asking for empirical evidence such as a recording. But I’m afraid a recording would only sound like TV. How can I prove my case? And how can I get the Board to levy fines for noise as they are required to do according to the rules.

My tenants are threatening to move out.

A: Noise is subjective. Your tenants may consider it a nuisance while teen-agers call it music.

Many condominium owners complain that they can hear everything the next door (or upstairs) unit owner is doing. Whether it involves taking a bath, flushing the toilet or just walking around the unit, too many buildings are not appropriately sound-proofed.

Many associations impose rules in order to curtail excessive noise – such as requiring that a large percentage of the unit have some form of carpeting. And all associations require that owners refrain from excessive conduct which will annoy and disturb their fellow owners.

How do you prove that your neighbors are troublesome?

First, your Board has suggested that you record the noise. You should do this, and note the time and date of each recording. You are correct that it may sound like a Television program, but you now have recorded the time of the disturbance. Get a listing of all televisions programs that were on during that time, and then the Board can question the tenants as to what they were watching at that specific time.

Second, when your tenants start hearing the noise, they should immediately contact a Board member and request that they come over to the apartment. I know that most Board members do not like to be disturbed, especially late in the evening, but they are elected to represent the Association and have the obligation to try to enforce the rules of your association.

You should discuss this in advance with the Board, so that they will not be surprised when that phone call arrives. Get phone numbers from all Board members, and give this information to your tenant.

Third, keep calling the police, especially if the disturbance continues and sounds violent. When the police arrive, let them listen to your recording. This way, if those tenants claim they were just watching TV, the police can ask which program, and you can then compare your recording to the program the tenants claim they were watching.

Fourth, talk to other unit owners who live near the noisy tenants. Many people are reluctant to get involved for fear of retaliation. But if they know that they are not alone, they may be willing to join you in complaining. In fact, when the police show up, ask them to talk to other owners who live nearby.

These are some suggestions on how to prove the disturbance. Some Boards of Directors (and their lawyers) take the position that this is only a problem between two unit owners (or their tenants) and that the Board should stay out of the fracas. But your Bylaws require that the Board enforce the “non-disturbance” requirements, and you should keep prodding the Board to take all appropriate action.

Here’s another suggestion. You Board should adopt a rule that requires all owners who rent their units to enter into a lease addendum with their tenants. Such an addendum has the following provisions:

• the tenant agrees that he/she has received a copy of the condominium legal documents;
• the tenant agrees to abide by requirements of those documents;
• the tenant agrees that the Board of Directors has the right to take appropriate action against the tenant (as well as the landlord/unit owner) should there be violations of the documents, and
• if the landlord does not pay the monthly condominium fees, the tenant will begin paying the rent directly to the condominium association.

This is an important requirement that every condominium association should adopt. Otherwise, tenants can legally claim they have no obligation to the association, since their lease – their contract -is only with the unit owner. This is known in law as “privity”, and associations must have the legal right to go after all tenants, as well as the unit owners.

You should also remind the Board that in addition to fining the owner, they have the right to pursue legal action to evict the tenant – especially if there is a “lease addendum” in place.