Page 8 - CooperatorNews Chicagoland Spring 2021

8 COOPERATORNEWS CHICAGOLAND
—SPRING 2021
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frustrating situations for both the unit owner
and associations,” he says. “Oft en it is ad-
dressed as a nuisance behavior. One person
is creating an unreasonable situation and in-
terfering with another person’s legitimate use
and enjoyment of [their home]. It’s diffi cult
to establish the nuisance as noise—and sen-
sitivity to noise is somewhat subjective. Some
people are more acute and sensitive to distur-
bances than others, from whatever source.”
What to Do?
If you’re the one suff ering through a dif-
fi cult noise relationship with your neighbor,
what should you do? Th e options available to
you might depend on where you live. Attor-
neys in Chicago suggest you have a friendly
conversation with your neighbor fi rst. Ex-
plain to them what’s happening on your side
of the common divide and try to work out a
solution that’s amenable to both of you. “Th e
common expectation is that neighbors will
talk to each other civilly,” says Kim.
By contrast, attorneys in New York sug-
gest you bypass the personal approach and
go directly to the managing agent. According
to Koplovitz, “Th e fi rst thing to do is reach
out to your managing agent. Make sure you
document the noise, the time it occurs, ele-
ments and characteristics of the noise, etc.”—
the managing agent will need that informa-
tion when he/she speaks with your neighbor.
“Co-ops generally have an 80% rule with re-
NEIGHBOR...
continued from page 1
gard to fl oor coverings”—meaning that 80%
of the fl oors in a unit must be covered with
carpet or rugs to absorb sound—“and all
shareholders have to abide by it. Th e manag-
ing agent may do inspection of the apartment
to make sure it’s in compliance.”
Th ere are limits to ‘Midwest Nice,’ how-
ever. Kris Kasden, another Chicago-based
community association attorney, notes that,
“While I do favor the neighborly approach,
“Th e common
expectation is that
neighbors will talk to each
other civilly.”
—Michael C. Kim
some owners who are being bothered by
noisy neighbors may not want to approach
the person causing the noise due to a per-
ceived [threat of] retribution. Th ey may be
fearful of the neighbor—especially if the situ-
ation is already tense.” If speaking with the
noisy party is viable, and fails to remedy the
problem, “In almost every situation, the own-
er should next complain to the association,”
says Kasden. “Register it with management
and the association board, and ask them to
stop the noise. Most condos and co-ops have
rules—nuisance provisions—that address
noise problems, and if there are rules, they
must be followed.”
What Says the Board?
Once the managing agent has entered the
picture, the board will be informed of the
problem—and in some cases, explains Kim,
may choose to get involved. Th ey may hear
the complaint, determine whether under the
building or association house rules there is a
problem, and come to some determination
of action against the off ending party. Th at
action might range from mandating the in-
stallation of some kind of soundproofi ng, or
perhaps even leveling a fi ne.
Regardless, if it’s determined that there is
a nuisance, that nuisance must be addressed.
According to Mark Hakim, an attorney with
the fi rm Schwartz Sladkus Reich Greenberg
Atlas in New York City, “Th e board has a
fi duciary responsibility to investigate, and
promptly attend to all complaints and de-
termine the validity thereof. In the event a
board doesn’t act promptly or properly, the
shareholder can bring an action against them,
based on that shareholder’s inability to use
their apartment in the manner intended.”
In the event the board refuses to intervene
and the nuisance continues, the complaining
party can take matters into their own hands.
Not only can they sue the off ending neighbor,
but if they feel the board has shirked its re-
sponsibility in upholding quality of life in the
building—and that responsibility is clearly
delineated in the governing documents of
pretty much every multifamily community—
the complainant can sue the board as well. If
it’s determined that the board was unrespon-
sive to the point of negligence, the board as
a body, as well as individual board members,
may be on the hook for damages.
Condo vs. Co-op
As usual, the diff erences and distinctions
between condo and co-op ownership fi g-
ure into how noise disputes are adjudicated
in each. In this particular case, co-ops have
more sway over the behavior of their share-
holders than condos or HOAs do. Techni-
cally, since a co-op shareholder is a resident
under a proprietary lease (rather than a deed-
holding owner of real property, as is the case
in a condo), and since the co-op guarantees
the right of quiet enjoyment under the Hab-
itability clause in that lease, the complaining
shareholder could force the board’s hand to
ultimately evict the off ending shareholder for
his or her actions.
In a condominium, the actions left to the
board are less direct. Th ey would have to ob-
tain a cease-and-desist order—but according
to the attorneys
CooperatorNews
spoke with,
condominiums are increasingly enacting
house rules more similar to co-ops than in
the past to eff ectively deal with these issues.
Fundamentally, whether co-op or condo,
an apartment is a home—and a home is in-
tended to be a place of rest and tranquility
to be enjoyed by its occupant. Be cognizant
of your neighbors and the noise you make.
Hopefully, they will do the same.
n
A J Sidransky is a staff writer/reporter for
CooperatorNews, and a published novelist.