Rental forum: Tips on filing nuisance lawsuit in small claims court
Q. I own a condominium unit in a homeowners association (HOA). I have lived there peacefully and quietly for almost four years until a new family began renting next door. The mother and her six kids have placed a piano right against the common wall, which is between her unit and my master bedroom. It seems like they play the piano seven days a week, from 8 a.m. to 10 p.m. with virtually no breaks! The sound from the piano is so loud I cannot sleep before 10 p.m., nor can I read a book or watch TV in the bedroom.
I have tried to reason with her and ask her to move the piano to another location inside her condo and even offered to help move the piano. Additionally, I suggested a professional soundproofing material to drape the back of piano so it doesn't touch the wall. She ignored me and said she has the right to play the piano as much as she wants during the HOA's "non-quiet" hours, which are 8 a.m. to 10 p.m.
I talked to the HOA property manager as well as the management company that rented to this family next door. They both sympathize and agree that having the piano violates my rights for "reasonable peace and quiet." However, they have not been able to solve the problem.
The HOA manager says there are no rules against pianos or any musical instruments and the only way they can cite the owner of the unit next door for the behavior of their tenant is if there is a specific rule being violated.
He said he can try one more thing. He would be willing to see if all of the homeowners would vote to support a change in the HOA governing documents to specifically have rules against putting any musical device next to a wall that would cause a disturbance. But he said this is going to take a long time to materialize and only if there are enough votes to achieve a two-thirds majority in favor of the change.
The HOA manager did write a strong letter to the tenant asking her to move the piano, but still she refuses. The tenant claims there is no local or state law that says she cannot put a piano where she wants to, and existing law on noise disturbance does not cover noise from a piano.
The HOA manager is now dumbfounded that the neighbor does not want to comply with even his request, but he claims that he cannot remove the person from the property, as she is in the middle of a valid lease.
I have checked my local city ordinance and it states the following:
[8-1.2.h] Noise disturbance shall mean any sound which annoys or disturbs a reasonable person of normal sensitivity. The factors which may be considered in determining whether a noise disturbance exists shall include, but not be limited to the following:
• The relative sound level of the objectionable noise to the ambient noise.
• The proximity of the objectionable noise to residential sleeping facilities.
• The day of the week and time of day or night the objectionable noise occurs.
• The duration of the objectionable noise and its nature.
• Whether the objectionable noise is continuous, recurrent or intermittent.
So armed with this information, I called the local law enforcement but they refuse to come because they said they don't deal with such situations. I am at my wits' end and was hoping you could offer some suggestions. Help!
A. I think you have a very legitimate claim against the HOA, the owner of the neighboring unit and the tenant.
I think your first step as the owner of a unit within the homeowners association is to pull out the copy of your governing documents that you received when you bought your unit several years ago. You know that large "phone book-size" stack of papers you didn't really read when you bought your unit? You will probably find the HOA property manager didn't read it that carefully, either, as most governing documents will have language that talks in generic terms about a nuisance.
There are not always clear definitions of what is a nuisance, so that is where you educate your HOA property manager with the local city ordinance definition of a "noise disturbance." From my understanding of your situation, you seem to have met the threshold for most if not all of the five elements that the city feels are important criteria in establishing whether there is a nuisance.
You should also bring this language to the attention of your neighbor and his property manager in the form of a polite but direct letter. If they continue to refuse to take action, then you should seriously consider filing a small claims action for nuisance. These actions have been very successful in showing your tenant/neighbor and her unit owner/landlord that you take this very seriously. However, you will need evidence to support your case.
While you can personally testify and make recordings to play for the court, I find that it is best to have third-party documentation. It is unusual in my experience, but you indicated that the local law enforcement officers are unwilling to respond to your complaints, as that is "not their job."
I would suggest you contact the city building department or code enforcement office and see who does enforce the city's own noise ordinance. Some entity or department within the city should be responsible for taking these complaints and even if they send out a form letter that may help. However, if you continue to complain (and always do so in writing) then they will ultimately be forced to come out and personally investigate.
Hopefully, the city will issue a citation or at least a warning and often that will resolve the problem, as most people will realize that they are creating a nuisance as established by a neutral third party that has the authority to make such determinations.
Either way, you want the city to make a written report that you can then take to court to authenticate your complaint if the renter next door continues her continuous concert series.
• Property manager Robert Griswold is author of "Property Management for Dummies." E-mail email@example.com.
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