Real Estate & Property Law

Do You Need An Attorney For Noise Issues?

Here I am on the noise kick again. This question is asked of me about every other week.

"Can you please recommend an attorney that is willing to represent a homeowner? I am getting close to exhausting my avenues of getting noise problems resolved."

People get to the end of their rope and think an attorney can solve their problems. What (unforetunately) often happens is that the person that is suffering then ends of suffering from two ills: foottfall noise from the unit above and a cash flow problem. Why? It is difficult to get satisfaction unless there is a clear violation of some kind to pursue. What can happen is that both sides of the dispute make what sound like reasonable arguments about what is right and what is wrong.

Here are the most common complaints:

**A toddler or toddlers running, jumping, playing with toys, dropping objects, etc. creating noise magnified by hard surface floors.
**A lack of rules in the HOA prohibiting hard surface floor coverings in second-floor condos.
**A lack of oversight by HOA architectural committee concerning sound-reducing materials or carpet.
**Neighbors exercising their "right" to have hardwood floors.
**Lack of awareness of the extent of the noise at time of purchase because unit above was equipped with padding and carpeting.
**Denial of responsibility by upstairs owners to install any sound-reduction materials or to mitigate noise in any way.
**Denial of HOA to do anything, claiming the problem to be "one between neighbors and none of their affair".
**A claim that the upstairs neighbors have a right to "decorate" their unit as they wish, under the CC&R's.

In some cases, the downstairs owners have even gone so far as to volunteer to pay a portion of reasonable costs of carpeting and the upstairs neighbors will not even talk to them about the possibilities. Some owners resist carpeting stating that they have allergies. (A suggestion of cork flooring in traffic areas may not have been discussed or considered.)

I have suggested in past blogs to try and engage the other side in a mediation to discuss the mitigation possibilities. I have talked about the availability of low to no cost mediation services. Of course, if a person simply cannot get the parties (other owner, possibly association), to come to the table, there is another possibility that does not cost an arm and a leg.

I do not recommend this option as a first step, but it may be an alternative to giving up because you cannot afford an attorney. There are public and private nuisance laws. Most governing documents have a prohibition on unreasonable noise. The Civil Code (in California) has a nuisance law. A person can file a small claims court case for about $25, pay about $20 per party to have it served, and (in California) ask for up to $7500 in damages for nuisance. This is a place where one could "test their theory" that the noise above is unreasonable, because of conditions create by the neighbors.

I do not think any judge or hearing officer would award damages just because of kid or family noise during the daytime; however, I do believe it is possible to get the right kind of attention from a hearing officer or judge who believes that the failure to mitigate the noise in any way, shape or form and the failure of any party to even consider mediation are grounds for either some award of damages, or at the least, a warning to the upstairs neighbors to take some kind of reasonable steps to mitigate the noise (or risk having to come back to the court and answer for not doing so).

On the other hand, if you take your "case" to small claims court and do not have a reasonable position to present, you can expect to be disappointed.

For more on noise and other difficult issues, check out my new book recently released (THE CONDOMINIUM OWNERS ANSWER BOOK) at http://www.californiacondoguru.com - navigate to the "publications page".

Full post as published by California Condo & HOA Law on March 25, 2008 (boomark / email).