Condo Media - January 2020 - 43

Helpful Advice complaints
prohibition certainly makes sense from
a practical standpoint as it would be
difficult and even impossible to list out
every situation and example that qualifies as excessive noise. But on the flip
side, the general catch-all that excessive
noise is prohibited creates an expectation that any noise someone finds annoying or a nuisance, is prohibited.
People do not exist in a vacuum and
life and living can be noisy endeavors.
Accordingly, there will always be some
noise, and as result, some irritation
involved in communal living. Boards
should include statements within their
rules and regulations that a certain
level of noise should be expected. Doing so will help set the expectations
of residents. If residents believe that
the golden rule is zero tolerance for
noise they will expect action (and be
infuriated) if the board chooses not to
intervene or act to prohibit the noise.
Likewise, though the tendency for
boards is to want to solve a problem a
resident may be having, in some cases
the board should refrain from trying
to resolve the situation and encourage
the complaining resident to approach
and work with the neighbor to solve the
issue on their own.
Including and outlining steps that a
resident should take before bringing an
issue to the board such as (i) keeping a
detailed log of the incident(s); (ii) suggesting that residents try and mitigate
the noise from their own unit if possible,
and (iii) encouraging residents to speak
directly to the neighbor first, should be
included within the rules as well.
OTHER REMEDIES
If the noise complaints continue,
facilitating a face-to-face meeting between the parties may be helpful. Such
meetings can often result in a mutually
acceptable resolution as most people
are less accusatory and/or defensive
when they are meeting and discussing
a problem in person. It is sometimes
easy for residents to rely on email to
make complaints or "talk through the
board," so to speak. By facilitating an in-

person meeting the board can perhaps
diffuse the situation and at the same
time require residents to take personal
responsibility to resolve the issue.
There are also other options that
boards can utilize when faced with a
continuing noise complaint. Sometimes
the matter being complained about (domestic disturbance, drunken or aggressive behavior, etc.) should be handled
by calling (or directing residents to call)
the police. If the board determines that
the particular noise being complained
about is excessive, and is actionable,
the board can first seek to notify the
resident of the misconduct and request
compliance. If the behavior continues,
the board can escalate the matter by
imposing fine(s) in an effort to deter the
conduct. In persistent instances, the
board may also seek judicial intervention by filing with a court to obtain an
order requiring the resident to refrain
from the offending activity.

Often, condominium documents
or state law permit the association
to assess the costs incurred by the
association in addressing a resident's
misconduct to the owner of the unit.
Such assessments (in addition to the
above actions) can also help create a
deterrent for the behavior. However, in
choosing what mechanism to employ,
the board's primary goal should be to
encourage compliance, and not to punish the resident.
While the board should enforce
community restrictions, when it comes
to noise complaints, there is no onesize-fits-all remedy and each situation
should be evaluated based on the particular facts involved.
■ MARK EINHORN, ESQ., IS A PARTNER WITH THE LAW FIRM MARCUS,
ERRICO, EMMER & BROOKS, P.C.

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January 2020 CONDOMEDIA

Condo Media - January 2020

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