Complaints about noise are among the most common issues faced by boards of cooperatives and condominiums in New York City. Apartments are virtually never noise-free. A decision to live in an apartment building includes tacit acknowledgment that, at times, neighbors will be heard. The question is: when does the level and nature of noise rise to the level of an impermissible nuisance? Determining the answer can be especially difficult. It is not uncommon for noise that one person believes to be unreasonable and life disruptive to be considered by another person to be customary and reasonable.
The basic rule applied by the courts is that in order for noise to constitute a legal nuisance it must be substantial, unreasonable, and caused by an act or failure to act. Mere discomfort or minor inconvenience is not sufficient. Noise during daytime or early evening hours or from standard life activities is generally deemed not to be unreasonable or excessive — examples being heavy walking, children playing, and (as expressed in a recent court decision) even several hours of piano playing. Loud noises during late-night or overnight hours are obviously another story. The courts also recognize that noise that is reasonable during the daytime may be unreasonable at night and that the nature of the location where the noise is heard should also be considered. In addition to these general principles, the common theme in most court decisions is that each case is very fact-specific, and that common sense will be applied.
In deciding noise cases, courts will consider a number of forms of proof, including testimony from third parties, such as building residents, staff, or management, who have witnessed the noise at issue. Reports of sound transmission testing performed by specialized firms may also be considered. Courts generally give weight to the results of such testing if it shows noise levels that exceed the maximum limits set by the City, particularly if the noise is during late or overnight hours.
When a board receives a noise complaint, it should notify the accused noisemaker and make a good faith investigation to ascertain: (a) whether there exists noise which is above and beyond the typical level of noise that results from normal daytime activities; (b) whether there exists any violation of the cooperative’s or condominium’s governing documents; (c) whether there exists any condition related to the noise for which the building may be held responsible (in which event, the board should promptly determine whether and to what extent to address that condition); and (d) whether there is a basis upon which the board may wish to propose a resolution of the issue. As part of its investigation of a noise complaint, the board should ascertain whether there is any independent third-party verification of the noise. Logs noting dates, times, duration and the nature of the noise at issue are very important. It is unlikely that any enforcement action will be effective without independent verification of the noise (e.g., through third party testimony or test results). If the board determines that the party accused of making the noise has violated the noise-related provisions of the building’s governing documents or noise limitations provided by law, it should seek to bring the party to heel by enforcing, or threatening to enforce, the building’s rules. In the majority of cases, however, persuasive third-party verification is not available so that fault is not clear cut. In such cases, litigation is not sensible, and a board may suggest that the parties to the noise dispute seek voluntary mediation (available, for example, through the New York City Bar Association), in an attempt to achieve a practical solution.
In short, the best a board can do in most cases is to act reasonably and in good faith, investigate thoroughly, enforce building rules where applicable, and attempt to facilitate a practical resolution.
For more information on noise complaints as a legal nuisance, contact your Cooperative and Condominium Counsel at Smith, Gambrell & Russell.