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Screaming Babies - Can You Sue Them For Nuisance?

The following is a very difficult set of facts. Some situations are just not conducive to litigation or punishment until it can be established that the parties are not making any compromises or working to find a mutual solution.

Kid noise is the source of many disputes in condominiums and townhomes. It can be a problem in apartments too, but it is easier for a party that is a renter to leave an apartment and find another place to live. And keep in mind that "it takes two to tango" as they say.

Here are the facts as presented to me:

"We are renting a condominium from a friend and have a 1 1/2 year old toddler. On occasion, he has a tendency to scream quite loud, whether it is because he is upset or just wanting to let out steam. To our knowledge, his screaming has never occurred before 9 am. Our neighbors have complained to us about the "noise" coming from our unit since the day we moved in and have now taken the issue up with the HOA.

We got a visit from one of the HOA members yesterday who wants to find a solution before involving the landlord and deciding disciplinary action against them.

We do not understand our rights as renters and what we are supposed to do in this situation. We do not encourage our son to scream, but at his age we do not know what recourse we have. We are doing our best to re-direct his energy into different activities, but we also believe it is a normal phase toddlers go through at his age. We have been in our unit for less than 5 months and have been bothered with this issue on three different occasions.

Do you have any advice? And does the HOA have any legal recourse against us?"

First of all, let me say "kudos" to the board member for seeking some kind of resolution before meting out punishment on the landlord or anyone else.

Let's say that you are the decision maker in this situation having to mete out the punishment, if there is to be any. Who do you think should "win" if a legal battle ensues? Do you think anyone should be punished in this situation?

If you have kids or grandkids that are hyperactive, easily excitable, colicky or just plain heavy footed or noisy, you will sympathize with the tenants who have the child screamer.

If you are single or a couple without children or with perfect children, work at home, work nights and sleep days, are a senior citizen who has "paid his or her dues" and are looking for a peaceful place to live, or are disturbed by loud and unpleasant noises, you will most certainly side with the complaining neighbor.

If you are an HOA lawyer without compassion you might say that any loud noises of this magnitude are a disturbance and should be punishable by the full extent of the authority of the governing documents. Or you might be inclined just the opposite to say this is not the board's problem, that it is a neighbor to neighbor dispute and the board should not get involved.

As for legal rights, the board could impose discipline on the owner of the property including fines, suspension of some of the rights of owners (and tenants by delegation) and the like, according to what the governing documents allow, for each incident. And the board could likewise probably opt out of the dispute and refer the parties to a local mediation service. If taking action against the owner for the screaming baby noise, the board would want to be careful to avoid any action that could be perceived as discriminatory, meaning a violation of the constitutional protections for families with children.

So who is right? Everyone? ... No One? Here are some things I would recommend that the parties consider:

The Renters With the Screaming Child

Move: If you can move to a new place with better insulation or a home without party walls, life will be simpler. Of course, this may not be possible for financial or other reasons.

Check with a medical doctor, psychologist or behaviorist that works with toddlers to see if there is anything that can be done to help the child cope or help you (the parents) deal with the screaming in a manner that minimizes it.Perhaps there is some solution involving a distraction, supplement, food, medication, or something else that can be used to assist in the situation. It would make sense to keep a log of incidents, times, and circumstances surrounding the screaming incidents both for your own use, for informational purposes for any provider, and/or for a documented record in case there are allegations made of noise when it is not your child.

If You Are The Complainer

Remember, every time the child is screaming the parents have a front row seat and so it is at least as disturbing to the parent, and actually doubly so since they have to endure the baby noise, and the neighbors' wrath. Be glad you are not the parent having to cope with complaints about a condition that seems unresolvable related to children noise.

Get some noise cancelling headphones and be glad that the noise is not caused by a stereo with extra high def base on and surround sound speakers placed on a hardwood, laminate or tile floor.

Get surround sound and when the screaming starts turn on a movie about a car race, something like Thunder Road or a musical, or turn on the stereo and listen to some lively music (not so loud it disturbs the neighbors).

Indicate to the neighbor a willingness to talk about the situation and see if there is something you can do to work things out.

And for 3 times in 5 months, have a heart.

Full post as published by California Condo & HOA Law on June 23, 2010 (boomark / email).