Q. I have written several complaint letters to the board and the managing agent regarding a noisy neighbor. They did send a letter to the shareholders about a year ago, but the problem persists. Although I continue to write letters, nothing is being done. What is my recourse? Do I file against the board for not acting on my behalf? It really affects quality of life.
—Shareholder on the Edge
A. “Living in a cooperative apartment means living in close quarters with fellow residents, and one of the most common complaints is excessive noise from one’s neighbors,” says Cathleen Hung, an attorney at the New York City-based firm of Anderson Kill. “Turning to litigation to resolve a noisy neighbor issue should be a last resort. Not only is litigation the most expensive option, it is also difficult to prove in court because excessive noise is a subjective matter, with different people having different sensitivity to noise.
“So before taking the case to court, try exhausting the following options: The first option is going directly to the source and knocking on your neighbor’s door to explain that the noise is really affecting your quality of life. Your neighbor may be unaware that the letter sent out to all shareholders was specifically directed at the noise coming from his or her apartment.
“If your neighbor is not receptive, the second option is to get the board and managing agent involved. You have already sent out complaint letters – but try supporting your grievances with both documentation and references to the house rules. Most cooperatives have a house rule prohibiting disturbing noises during nighttime hours, so document the times and duration of the disturbances. Some cooperatives also have a house rule that requires 80 percent of an apartment’s floors to be covered by carpeting, so have the managing agent inspect your neighbor’s apartment to make sure he or she is in compliance.
“Give your managing agent enough evidence so the board can cite your noisy neighbor for violation of the house rules, rather than just a general letter to all shareholders about keeping the noise level down. Make sure to also keep copies of all your correspondence with the board and managing agent, as those records will be essential should you decide to pursue litigation later on.
“If none of those options have yielded a resolution to your noisy neighbor problem, then it might be time to consider an action against your board of directors. A claim that the board has breached its fiduciary duty will be problematic, as the board’s actions are generally protected by the Business Judgment Rule. Whether the board decides to act or not to act, the courts defer to the board’s decision as long as it was within the scope of their authority, made in good faith, and arguably advanced a legitimate corporate purpose. The board would not be protected by the Business Judgment Rule if the board did not consider or deliberate a shareholder’s complaint at all – but here it looks like the board made a conscious decision to issue a general letter to all shareholders and deemed it sufficient.
“You can make a little more headway with a claim that the board breached the warranty of habitability, and also petition for an abatement of maintenance charges. Because you occupy the apartment pursuant to a proprietary lease, the board has a landlord-like duty to remedy certain apartment conditions. However, to prove a breach of the warranty of habitability you must show the court that the noise level was so excessive it rendered your apartment uninhabitable, which is a challenging standard to meet. In the end, you may come out of litigation with an unsatisfactory result and a hefty legal fee. The more prudent remedy may be to simply elect a more responsive board.”