When Good Neighbors Go Bad: A Board Director's Guide to Nuisance Claims

Living in close quarters with neighbors who blast music at 3 AM, cook pungent meals, or hoard items can turn apartment living into a nightmare. But when do everyday annoyances cross the line into legal nuisances, and how should co-op and condo boards respond? Stewart Wurtzel, member of Tane Waterman & Wurtzel, offers practical guidance on investigating complaints, understanding legal standards, and protecting both resident rights and building harmony – before matters escalate into lawsuits. Habitat’s Emily Myers conducts the interview.

Key takeaways for board directors:

* The legal threshold for "nuisance" requires persistent, egregious conduct that threatens health, safety, or comfort - not just occasional annoyances. Normal city living sounds like television at regular volume or footsteps are generally not considered unreasonable.

* Boards have a duty to investigate complaints but must balance this obligation carefully. Simply accepting complaints at face value and sending warning letters without investigation can create unnecessary conflicts between residents.

* Documentation is crucial - encourage complainants to maintain detailed logs of disturbances, including timing, frequency, and duration. Multiple complaints from different residents typically carry more weight than isolated complaints.

* When pursuing legal action, boards must ensure complaining residents are willing to testify in court. Without their cooperation, the board risks losing the case and potentially being responsible for the defendant's legal fees.

* Different remedies exist for co-ops versus condos: co-ops can pursue eviction proceedings, while condos must seek injunctive relief through Supreme Court. However, the underlying analysis of what constitutes a nuisance remains largely the same.

The business of running a building is demanding work that requires making endless decisions — some that can quickly lead your board into a quagmire of legal difficulties. Legal Talk interviews New York's leading co-op/condo attorneys to find solutions, and get some guidance, on these challenges. For more co-op and condo insights, sign up to receive Habitat's free newsletters or become a Habitat subscriber today!

Transcript

Emily Myers: Welcome to Legal Talk, a conversation about the governance issues facing New York's co-op and condo boards. I'm Emily Myers with Habitat, the magazine for New York City's co-op and condo board directors, and I'm joined by Stewart Wurtzel, member at the law firm, Tane Waterman and Wurtzel. Apartment living brings us into close proximity with our neighbors and their cooking smells, smoking habits and pets.

And sometimes these can generate complaints. Stuart, what tips something from perhaps an everyday disturbance into a nuisance? 

Stewart Wurtzel: That's a very fine line. And it's one of those words that lawyers love because it's the key for litigation. The standard is unreasonable noise. So you know, you're living in an apartment building in the city, you have to tolerate a certain amount of reasonable noise.

People talking, televisions playing at normal volume, people walking across their floors, children playing, maybe not basketball in there, but running and doing what children normally do. These are not deemed unreasonable noises. And the problem is noise is very subjective, as to what somebody finds unreasonable.

And people have different standards and the courts pretty much say if you want absolute peace and quiet, city living isn't the place for you. There's a nice place upstate on a farm where you won't have to see or hear your neighbors. So you know, the standard centers around unreasonable. And that's a tough standard. 

Emily Myers: Okay, so what should boards do then, when they're alerted to this kind of behavior from residents? How do they investigate a nuisance to that standard? 

Stewart Wurtzel: First of all, a nuisance is going to be defined by a couple of things.

One, the standard English definition of it is basically something that annoys individuals. Now, that's not gonna be a legal standard that gets in. Everybody finds things to be a nuisance. So when you're dealing with co-op or a condo and issue, they're looking for what's persistent, egregious conduct, typically that's gonna threaten the health, safety, or comfort of somebody. So somebody blasting the television at three o'clock in the morning that's keeping everything up is very different than one of the older buildings, which has no soundproofing, that you can hear a normal volume of television. We get complaints about noise all the time. Practically every day we'll have people, shareholders reaching out to us saying, my neighbor, it's intolerable, or board saying, we're getting these complaints. What do we need to do? So there are a bunch of things that need to get done and a couple of things that the board wants to be careful about. 

Emily Myers: So noise is the primary nuisance. Then what do boards do to evaluate that? 

Stewart Wurtzel: Let's just briefly mention some of the other. Noise is by far the most common. Odors, unreasonable cooking, vermin, hoarding, that type of stuff also comes in and falls in under the nuisance. But far and away noise is the most common one.

So the first thing the boards have a duty to do is investigate. That doesn't mean that they need to take on face value, what the complaint is. A board hears that, I'm complaining about my upstairs neighbor, 'cause she comes in and she's stomping across the floor in her high heels.

The odds are pretty good she's not stomping and walking normally, but she's wearing her shoes, when she came home from work, or he came home from work, and it makes noise. And if that's the nature of the complaints, one thing the board may want to do is simply say to the upstairs neighbor, there's a carpeting requirement.

We're getting complaints. We need you to comply with the carpeting requirements. And a lot of times people, resist on that, oh, I have beautiful wood flooring. I'm allergic. But there are things that can be done around that. But initially, if you're getting those type of complaints aboard should pretty much say you gott carpet. It's in the prop lease, it's in the house rules, it's in the condo docs.

So that would be step number one. Problem with noise is it's not always persistent and consistent. If we're dealing with noise from individual neighbors, it may be tough to investigate. A board member, a managing agent, doesn't have an obligation to go sit in the neighbor's living room for three hours for them to say, ah, there you go!

You hear it? So it's a little tough to sometimes investigate those type of things. And the real problem with noise is it's very subjective. People have different tolerances, some people are super sensitive to noise. Others, just tune everything out.

They need to do some type of investigation. 

Emily Myers: Would that investigation be bringing in experts or equipment that evaluates the noise? 

Stewart Wurtzel: It depends on what the type of, the noise is and how persistent it is. A lot of times you get complaints dealing with mechanical noise, elevators, HVACs, neighboring buildings. There bringing in an acoustical engineer to take readings is a great way to go, because there's a noise code and if the noise exceeds that, nuisance is proven and you know something has to be done. The building has to fix something, then they need to reach out to the neighbor.

With the other types of noise, the talking, the yelling, it's so intermittent. If it's happening often enough, yeah, it's a possibility, but a lot of times it's just not successful. But it'll depend upon the nature of, of the complaint. And the other thing is, when you're dealing with a noise complaint in a building typically you're surrounded on four sides: up, down, left and right.

And if the noise is only affecting one person, it's a different impact than it affecting everybody or whole people on the floor going, yeah, I hear that radio playing down the hall. So how many people are complaining? And if they are complaining, then the next thing they need to do is basically keep a log.

When is it happening? How often is it happening? What is the duration? Recording it doesn't always work. We've had a lot of people say, I've got a tape recording of it, and they put it on and then they blast the volume. I see what it sounds like. Yeah. If you turn that all the way down, it sounds great.

So it doesn't really help. But you want to get some type of log, to be able to determine what it is. And not only do they need to get the log, the board has to make sure that if there's something there, these individuals are prepared to go to court and get on the stand and testify.

It can't be just that, the board members coming in, we received a complaint, or the managing agent, we received a complaint. The individuals need to get on and be able to testify and describe what it is and explain to the court how and why it's impacting their life, and why it's unreasonable.

And if the shareholders, many times, oh, I don't wanna go to court. There's not really a whole lot you can do. Because if the board brings the action and the shareholder doesn't show up and cooperate, and as a result the board loses, all of a sudden the board may be on the hook for the shareholders' legal fees.

They successfully defended against proceeding.

Have their ducks in a row and explain , okay, we've investigated, we agree there's a problem, but you need to come in. And again, if it's just one shareholder complaining about the noise, even if they come in, that may not be enough. If it's four shareholders or a whole floor complaining about it, it's a whole different story.

Emily Myers: And is it more often that boards are jumping on these nuisance claims, or is it more that they're letting them slide and not tackling them? 

Stewart Wurtzel: There's no easy answer to that 'cause every board is very different. What I don't like to see, a lot of times what boards do is if they get a complaint from the shareholder, without a real investigation, they send out a letter to the quote offending shareholder, we've received a complaint.

You have to stop what you're doing. I don't particularly like that because just because the complaint was made, the offending shareholder may not be doing anything wrong, and you don't wanna send a letter out and put them into a position that they're not using their apartment for the purpose of which it was intended and for what they're entitled to do.

When they get a complaint, the first thing they need to do is investigate and see what it is. And sometimes this is easily resolved if you sit down with the complaining and the offending shareholder, and maybe there's a middle ground. Some boards, they just take these proceedings. We've had board saying we're not dealing with it. If they believe it's a nuisance, they have their own remedy. I can sue my upstairs neighbor if they're creating a nuisance and take that tack. But if there truly is a nuisance and the board didn't do anything well, then there may be a potential liability to the board.

So doing nothing is not a great answer. But the shareholder, if the board says, we're not doing it, or we've investigated and we don't think there's enough there, bring your own suit. Do what you need to do.

Emily Myers: So what are some practical measures that boards can take to reduce the likelihood of nuisance complaints escalating to legal action? 

Stewart Wurtzel: First thing is to investigate because if they ignore it, they're only gonna get more complaints. And the problem comes in. They wanna make sure that if the offending shareholder is doing something improper, they address it.

If the complaints are that they're playing the piano at two o'clock in the morning, that's not appropriate. They need to stop. If the TV volume is too high, they need to adjust it. Those are the simple things. And as I said earlier, certainly enforcing the carpeting requirement if there are complaints and sometimes it's sitting down with the complaining shareholder and saying, hey, look, we've taken a look. This is New York City living, and they're not doing anything unreasonable and we're closing the book on it. Unless you come back and show us that there has been a change and there's something different, they've installed the carpeting or, no, we're not gonna require them to install carpeting when your complaint is you can hear them talking to each other in the kitchen. Because some of these buildings, the soundproofing is terrible. It just carries through. But, there are times that sitting down with both shareholders in a mediation, we've had buildings where, you know, the two neighboring shareholders agreed to install, acoustical tiles. Soundproofing tiles between the floor. The building has agreed to shoot some foam in between the floors. So sometimes there are some easy fixes in over there. It's a very difficult task because that word unreasonable, as I said, lawyers love it. Go define what's unreasonable.

Go define what's within a tolerable level. Somebody's gonna get on the stand and they have to quantify the noise, how bad's the noise? Oh, it's really loud, but what does that mean? It's really, it just doesn't mean anything, but there's no really great way to quantify it except when you're dealing with the mechanical readings.

Emily Myers: Okay. And so we've largely discussed nuisances in co-ops. Is there a different process for condos? Of course, co-ops have the warranty of habitability, the right for tenants, that includes co-op shareholders and they're entitled to a safe and livable apartment. But is it different for condos? 

Stewart Wurtzel: The condo bylaws typically have similar type of provisions where the difference lies, the problems, the analysis are all the same, whether it's reasonable, the impact, the carpeting, all of that is, 99.9% the same.

Where the difference is in the remedy. With the co-op, it can be an eviction proceeding. We're terminating your lease and we're doing an eviction proceeding. There's a certain interplay with the objectionable conduct proceeding in over there, which could be the subject of a whole nother Habitat discussion as to, when you could do objectionable conduct, when you can do nuisance. But with the condo, you're basically going into Supreme Court for an injunction. You can't evict them, so you're gonna get an injunction against them making the noise. And if they violate it again, you're going back for contempt proceedings against them. So everything is the same except for the procedure and the remedy.

There's no eviction in the condominium, but there is an injunction. And it's not housing court, if it's an injunction, it's Supreme Court.

Emily Myers: I think that about wraps it up. I think you've covered everything. Is there anything else you want to add there, Stewart? 

Stewart Wurtzel: No, I think said everything I wanted to say. 

Emily Myers: Stewart, thank you so much. Super helpful. Stewart Wurtzel, member at the law firm, Tane Waterman and Wurtzel.

Stewart Wurtzel: Thank you, Emily.

A pleasure as always.