Condo Media - October 2010 - 23

Like beauty (in the eye of the beholder) noise is subjective. The downstairs neighbor hears an army marching above; the upstairs neighbors insist that they tiptoe across the floor “quiet as mice.” “Like mice on steroids,” comes the reply. And so it goes. Is one neighbor being overly sensitive, the other not being sensitive enough or (as is often the case) some combination of the two? Noise complaints are further complicated because they often involve people who don’t like each other for unrelated reasons. “There is almost always a back story,” notes Patrick Brady, a partner with the law firm, Marcus, Errico, Emmer & Brooks. A noise complaint, he adds, is as likely to be a symptom of a soured relationship as the cause of it. That was the case in a recent incident in which Brady was involved, where one owner insisted that an upstairs neighbor, which whom she had been feuding for months, was intentionally tapping on the floor early every morning, just to annoy her. It turned out that the tapping sound was created by the neighbor’s walker, as she moved from her bedroom to her bath and kitchen after awaking. “What’s the board supposed to do?” Brady asks. “Tell the upstairs neighbor she can’t use her walker early in the morning?” Complaints about noise and other perceived annoyances are most likely to escalate, Brady has found: • When new residents, unaccustomed to condominium living, discover that some sounds will travel through the best-insulated walls; and • When a community’s demographics change, for example, when a number of families with young children move into a community that has consisted largely of empty-nesters. Owners, unaccustomed to having children living upstairs (or anywhere in their vicinity) are appalled by the “noise,” often insisting that the board

go to court, if necessary, to stop it. Again, the board confronted with that complaint will be hard-pressed to resolve it. They can tell the complaining owner to be more tolerant or ask the parents to encourage quiet activities for their children. Neither suggestion is likely to be well-received. And if the dispute ends up in court, which happens more often than it should, “How could we tell a judge that a four-yearold can’t run around in his home?” Brady asks. What the board may be able to do is point out that rugs or carpeting can reduce the noise created by children (or walkers) moving across uncovered floors. But if the association’s documents don’t require rugs, Brady notes, “we can only suggest them; we can’t require owners to install them.” Noise complaints and other rules enforcement challenges often require boards to balance equally legitimate sets of competing rights. Equally problematic, demands for boards to halt “annoying” behavior often clash with the limits on an association’s authority to control activity within an owner’s home, tying the board’s hands and infuriating the owners demanding action. In both situations, the board’s position is untenable — not just damned if they do or don’t, but almost certainly sued regardless of what they do or don’t do. For that reason, some industry professionals think boards should limit their involvement in neighbor vs. neighbor disputes as much as possible (See “Industry Perspective” on page 52). In most cases, they suggest, the board’s default position should be, “This is between you and your neighbor; it’s not the association’s problem.”

Smoking Storms
Few disputes are more bitter, more emotional and more fraught with litigation risks for community associations than those between smoking and nonsmoking neighbors. Smoking disputes are most intense and most difficult to resolve, Brady says, when they involve residents at the extremes: a non-smoker

on a crusade to ban smoking everywhere or a smoker who insists that a neighbor’s sensitivity to second-hand smoke is not her responsibility. These collisions between immovable forces and unstoppable objects become even more intense, Brady has found, when they involve attorneys or people who know them. He describes one recent incident in which an attorney and his wife purchased a unit in a community in which the owners were preparing to vote on an amendment to prohibit smoking completely. The amendment subsequently passed (the seller of the unit actually voted for it, Brady noted) and when the attorney smoked on his deck, the board fined him for violating the smoking ban. The attorney demanded proof, which the board had (in the form of pictures); now, Brady says, the attorney is going to court to challenge the fine. An owner in another community Brady represents is complaining about pipe smoke seeping into her unit from the one above. Although the smoker has taken multiple steps to address the problem, including sealing cracks and using “smoke-eaters,” the complaining neighbor, a secretary in a law firm, is still complaining and an attorney in the firm in which she works is threatening to sue the association, even though, Brady notes, a vote on a nosmoking amendment is pending. That makes the threatened litigation hard to understand, Brady says. “I told the attorney, if the court wants to declare second-hand smoke a nuisance that the board has the authority to prohibit, that will solve my problem,” he says. While courts in some jurisdictions have defined smoking as a nuisance, courts in Massachusetts and other New England states have yet to do so. And absent that definitive ruling, Brady says, if this dispute goes to court, “we’ll tell the judge the board has done everything it has the authority to do.” While an association’s legal authority to restrict smoking within an owner’s unit is not established, its potential

CONDO MEDIA • OCTOBER 2010

Condo Media - October 2010

Table of Contents for the Digital Edition of Condo Media - October 2010