Q&A: Mitigating Noise with Flooring

Q My family is a shareholder of one of eight apartments in a small Brooklyn co-op. The apartment directly above ours was sublet to a family in 1997 that signed an agreement specified by the board of directors requiring the apartment to have carpet in all rooms except the kitchen and bathrooms. Last year, this sublettor removed all of the carpeting because doctors advised that his three-year-old son was allergic to all carpets. Since then, the noise has risen to unbearable levels. The board offered to allow cork floors instead of carpet, but no action has been taken. Clauses of the lease state that any changes to the lease must be approved by 66 2/3 of all shareholders; the lessee should hold and enjoy the apartment, subject to the rights of present tenants; consent to subletting may be subject to the conditions which the directors impose; lessee shall not permit unreasonable noises; and the lessee is in default of lease provision thirty days after written notice.

Can the board of directors issue a new condition spelling out the thickness of the required carpet or require cork floors with thickness requirements? What steps can we take to ensure enforcement? What are we legally allowed to do?”

—Noise Nuisance

A “When trying to mediate noise problems such as these in the cooperatives we represent,” says Lawrence DiGiovanna, Esq. who has his own legal practice, The Law Offices of Lawrence F. DiGiovanna in Brooklyn, “We start by quoting the title of a Paul Simon song, One Man’s Ceiling is Another Man’s Floor, to remind parties living in an apartment or common interest community that comes with the burden of due consideration for neighbors and the compromises inherent in community life. When that fails, we look to the cooperative’s governing documents: the proprietary lease, house rules and bylaws.

“Although the house rules for the subject cooperative were not provided for our review, the board should determine whether they contain the following language typical of many cooperatives: “…the floors of each apartment must be covered with rugs or carpeting or equally effective noise-reducing material…” If this language is found in the bylaws, no change to the lease would be necessary since the language to be enforced already exists. While such language would be helpful, it may not be necessary since this proprietary lease, as most, contains language stating that the lessee/shareholder is prohibited from permitting unreasonable noises. Of course, the meaning of the term 'unreasonable' is subjective.

“Because the offending shareholder is alleging that the child has an allergic medical condition, the board may be required to extend a 'reasonable accommodation' to the shareholder under federal, state and/or city anti-discrimination laws. The accommodation would be to exempt the shareholder from the carpeting requirement. However, it would also be reasonable to require that 'an equally effective noise-reducing material' be installed. Cork would seem to be a reasonable substitute. The thickness of the cork should be adequate to provide an effective level of noise reduction.

“Sometimes, a letter from the co-op’s attorney will be adequate to get the parties to cooperate and compromise in reaching a solution. However, the attorney’s letter is not required and may not be sufficient to commence the more formal process of enforcing the terms of the proprietary lease. We prefer to have formal notices, the ones that are part of the enforcement process, come directly from the co-op board.”


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