Q. I am a resident owner in a 54-unit condominium association building on the far northwest side of Chicago. I write on behalf of a unit owner friend in the same building, who has been the resident owner since 2005. Her unit is on the second floor. She works full time and lives there with her daughter. The young couple residents living in the third-floor unit above her have two small children, ages somewhere between 11 and 8.
Article VII Section 1f of our condominium ownership declarations and/or covenants & restrictions states: “No noxious or offensive activity shall be carried on in any unit or in the common elements, nor shall anything be done therein, either willfully or negligently, which may be or become an annoyance or nuisance to the other owners or occupants.” She has called the president many times complaining. He informed her he would talk to them. The couple’s children are up at times until 1 a.m. and 2 a.m. in the morning, screaming, running, and jumping. My friend cannot get a good night’s sleep, which is taking a toll on her health. She even called the police. They stopped over and talked to the third floor unit owners, but it didn’t seem to help much. Do you have any suggestions that would help?
—Asking for a Friend
A. Ben Rooney, attorney and shareholder at law firm Keay & Costello P.C., with offices in Wheaton and Chicago, says, “Generally speaking, a community association’s covenants will contain a prohibition against residents engaging in ‘noxious and offensive behavior.’ The governing documents almost certainly include a provision allowing the association to file suit to enforce this provision, and may also allow individual owners to also bring suit to prevent other residents from engaging in noxious and offensive behavior.
“Whether behavior is noxious and offensive is a subjective standard. Not only can reasonable people disagree as to whether certain behavior is noxious and offensive, but other factors can be considered as well. Noise at 7:00 p.m. on a Saturday night will likely be looked at differently than noise at 4:00 a.m. on a Monday morning. For these reasons, convincing a judge or jury that behavior is noxious and offensive can be difficult. Before filing any sort of lawsuit to enforce a noxious and offensive behavior covenant, we advise our clients to obtain statements from as many potential witnesses as possible. Then we need to get these witnesses’ agreement to testify, should it be needed. Even then, success is not guaranteed.
“[The reader’s friend’s] specific instance, in which the persons acting in a noxious and offensive manner are children, presents additional problems for community associations. This is because under the Fair Housing Act, a community association is deemed to be a ‘housing provider.’ As a housing provider, the association is legally prohibited from discriminating against residents based upon their familial status. This means that children, and families with children, cannot be treated differently than other residents. Further, rules and covenants aimed at children must be reasonable. This means that in enforcing a subjective covenant against a family with children, an association risks not only being unable to convince a judge that the behavior is noxious and offensive, but also a claim by the family that the association is targeting them due to having children. This is not to say that families with children are incapable of acting in a noxious and offensive manner, and that the covenant cannot be enforced against them. It simply needs to be pointed out that an action by an association to enforce such a provision presents added risk. For this reason, many boards are reluctant to bring this type of litigation.
“I suggest [the friend] again reach out to the family and see if a meeting can be arranged in which the issues are discussed. [The friend] should also consider having the association attend or even arrange for the meeting. Even if such a meeting does not result in the behavior stopping, it will be useful to show a judge that attempts short of litigation were repeatedly attempted. [The friend] should also do her best to document and record each and every situation so that these situations can be accurately recalled in the event litigation is necessary. Finally, if the association will not take action (which is possible due to concerns of discrimination claims), [the friend] can consider bringing her own action against the neighbors to obtain a court order.”