This Week's Q & A

Q: My husband and I own the first floor condominium in an old triple-decker. The couple occupying the second floor unit are tenants, not owners, and they are incredibly noisy. They constantly stomp around, drop or slam things on the floor, slam doors, blare their television and otherwise make our lives miserable. The noise occurs at all hours of the day and night, making our dishes and lighting fixtures rattle and causing us to lose sleep almost every night. Their actions are damaging as well as annoying. The constant stomping above has put cracks in our ceilings and even made one or our light fixtures fall. We have tried everything, from tapping on the tenants’ ceiling to leaving notes in their mailbox, and have called and written the owners to complain – all to no avail. The owner of the third-floor unit is quite apathetic and has been unwilling to pressure the absentee owner on our behalf. What options (other than trying to sell our unit) do we have? Can we file a lawsuit? Can we somehow vote to evict the tenants? We just don’t know what to do

A: Complaints about noisy occupants and unresponsive absentee owners are common in condominium communities. And like most condominium problems, this one is more difficult to resolve when you have only three owners rather than 300. But the strategies available to unit owners are essentially the same, attorneys specializing in this area agree. If you can persuade the other owner-occupant that the noisy tenants potentially affect the value and salability of his unit (other buyers might be less tolerant of the noise than he is) then the two of you, acting as a majority of the association, could fine the unit owner for failing to deal with the problem. You also could seek a court order, against the owner, the tenants, or both, based on the disturbance and damage the tenants are causing. Absentee condominium owners are often more tolerant of unruly tenants than the owners of nearby units – the further removed the owners are, the more tolerant they are inclined to be. It sometimes takes a fine or a lawsuit or both to make distant owners recognize that a tenant’s behavior is their problem as well. A court could order the owner to deal with the behavior or to evict the tenants.

Your position would be stronger if the third unit owner joins you, but you can pursue this remedy on you own. In any event, before you initiate legal action, you will want to demonstrate that you have tried other measures to stop the offending behavior – e.g, complaining to the occupants, complaining to the owners, and calling the police -- without success. As in any other legal action, you will have to prove your case. You won’t be able simply to assert that the noise is intolerable and the tenants’ behavior is damaging; you’ll need pictures of the damage, tape recordings of the noise, witnesses who will testify on your behalf, or similar evidence documenting your charges.
Another possible legal strategy you might consider is bringing what is known as a “derivative action” on behalf of the condominium association, in which you would ask the court to order the trustees to do their job – in this case, to take action against the owner and the tenants. This is more complicated and more difficult than a direct legal action, it is not impossible and may be worth considering. One advantage is, if you prevail, the condominium statute would allow you to recover the costs of taking this action – actually, two-thirds of the costs. As one of the three trustees in your community, you would have to pay one-third of the association’s costs.