Handling Sensitive Complaints in Co-ops & Condos Sex, Smells, & Nuisances

Loud noisy neighbours disturbing unhappy couple in bed. Problems in neighbouring apartments at home vector illustration. Young annoyed man and woman cannot sleep, fighting or quarrel.

Conflict comes hand-in-hand with living in close quarters—and condominium and cooperative living is a prime example. Most dust-ups between neighbors involve run-of-the-mill issues like noise or hallway clutter, and can be settled with a cordial conversation between the parties involved—or with a mild nudge from the manager or board. 

But every so often, an intra-building complaint comes along involving issues more sensitive than the guy upstairs playing big band records at top volume after hours. When a conflict involves topics of sex, smells, or parenting, it can be tricky to parse the line between personal matters and public nuisance. In those situations, residents and community administrators alike are faced with the challenge of addressing potentially touchy subjects while maintaining cordial relationships with their neighbors and constituents. 

A Matter of Sex

When a noise issue arises between neighbors, approaches to resolution differ a bit from place to place. Attorneys in Chicago suggest a friendly conversation between the parties involved first to try and work out a solution that’s amenable to all. “The common expectation is that neighbors will talk to each other civilly,” says Michael C. Kim, an attorney with Schoenberg Finkel Beederman Bell Glazer in Chicago.

While it might not be that difficult to let a neighbor know they’re playing music too loudly, or stomping around like an elephant in combat boots at all hours, when the origin of a noise complaint is of a more…intimate nature, bringing it up to the offending party can be awkward at best—and might even be unsafe, depending on the situation and personalities involved. 

Kris Kasten, another Chicago-based community association attorney, notes, “While I do favor the neighborly approach, some owners who are being bothered by noisy neighbors may not want to approach the person causing the noise due to a perceived [threat of] retribution. They may be fearful of the neighbor—especially if the situation is already tense.”

That’s one reason that many attorneys suggest you bypass the personal approach and go directly to the managing agent. According to Deborah Koplovitz, a partner at the New York-based law firm Herrick Feinstein, when a complaint is chronic, “The first thing to do is reach out to your managing agent. Make sure you document the noise, the time it occurs, elements and characteristics of the noise, etc.—the managing agent will need that information when he/she speaks with your neighbor.”

That approach takes the pressure off the beleaguered neighbor, says Jay Cohen, the vice president and director of operations of A. Michael Tyler Realty Corp., which has locations in Manhattan and Long Island. “If someone calls me up and says that their upstairs neighbor is having wild and crazy sex,” he says, “I’m basically going to write a letter to the offending owner that says that they’re in violation of the house rules and the proprietary lease. They’re letting noise emerge from their apartment that is disturbing the quiet and peaceful enjoyment of other shareholders in the building.”

Indeed, many buildings and associations have quiet hours—usually between 10 p.m. and 6 a.m. or so—during which residents are expected to keep noise down, regardless of the nature of that noise. This type of rule can make it easier to address a potentially embarrassing issue without specifically describing the incident.

Bryan Mazzola, a partner at the New York office of law firm Boyd Richards Parker & Colonnelli, notes that in a co-op, shareholders have a responsibility to uphold the warranty of habitability, which ensures that everyone in the property can use their apartment for the purpose of which it is intended. And one can imagine that the frequent slamming of a headboard or the incessant creaking of a box-spring could have adverse effects on a neighbor’s use of their unit. 

In this type of situation, Mazzola says that like Cohen, he would start with a letter indicating that there have been complaints. “If it’s sex, I may not use language directly specifying such, but I’d say that there’s a complaint of ‘unreasonable noise emanating from your unit that is keeping neighbors awake,’” he says. “That gets to the meat of the issue. As an attorney, I don’t care about the source of the noise, regardless of whether it’s a neighbor or a machine, but it’s my obligation with a co-op to ensure that the noise is addressed properly. In a condo, I have no such obligation to ensure that an apartment is habitable, but these issues are usually addressed in the condo’s bylaws and declaration.”

Unfortunately there are occasionally instances where there’s only so much an intermediary can do to mediate a dispute. “I once dealt with a woman who thought that the couple above her were somehow monitoring which room she was in, and would purposely have sex directly overhead just to annoy her,” relates Bram Fierstein, co-founder of Gramatan Management in New Rochelle. “Sometimes people are psychologically disturbed, and will never be placated. But unless they can prove that any noise in question is happening during quiet hours, there’s not much that can be done.”

Stinks & Stinkers

There are of course plenty of other topics over which neighbors clash, and dealing with those can also be a challenge.

For example, an owner may be hesitant to bring up disturbances made by a neighbor’s children, for fear of coming off like a scold, or that they’re presuming to tell their neighbors how to parent their kids. In those cases, “It might just come down to a judgment call,” says Mazzola. “If it’s extensive banging and running around, that’s not something you need to embarrass someone about, so it may just entail a note that begins simply, ‘We received complaints…’”

Odors are another issue that can turn provocative, especially when the smell wafting around isn’t objectively foul, but perhaps just another culture’s cooking. 

“Hopefully the situation can be resolved amicably,” says attorney Gary M. Daddario, a partner at the law firm of Marcus Errico Emmer & Brooks in Braintree, Massachusetts. In the case of odor complaints, he adds, “Perhaps, if the matter is brought to the attention of the offending unit at a time when the odors are present in the common areas, then the occupants of the unit will realize that there is an issue and take some action to minimize their impact on others. If, however, the association must address the situation in court, legal counsel for the association may request that the court take a ‘view’ of the site. This is the equivalent of a ‘field trip’ and would allow the court to personally experience the odor. This will allow the court to make the most accurate determination as to whether or not the odors rise to the level of a nuisance.”

“Unit owners are usually not allowed to have any odor permeate their apartment,” says Cohen. “If there’s a minor issue, I’d tell the complainant that we’ll notify the offending owner about any smells; then we’d ask them to install an air purifier, or weather-proofing sealant to the door, to ensure that nothing permeates further. Eventually, it may be that we’ve done everything we possibly could, but at least [the complaining resident] would know we weren’t blowing them off.”

A Nuisance is a Nuisance is a Nuisance…

While the issues covered above might be a little touchier or more awkward, the fact is that a community’s governing documents don’t have to address every nuisance issue specifically in order to effectively manage conduct within the building or association. No matter what the nature of a disturbance, chances are it’s covered by the ‘no nuisance’ provision of the community’s governing documents. 

“Almost every set of documents includes a provision setting forth a prohibition against a unit owner causing a nuisance,” says Daddario. “The association may enforce such provisions, including through an injunction obtained from the court, in appropriate instances.” 

Much like those addressing noise, house rules around odors are often general enough that one need not get too definitive when addressing what’s causing the smell in question. However, Daddario continues, “The challenge for the association in seeking to enforce a ‘no nuisance’ provision is that the legal standard involved is a high threshold to achieve. Courts will only deem a nuisance to exist in cases in which the court is satisfied that the evidence shows a level of disturbance to others that is beyond the reasonable annoyances of life and neighborly living that one must expect in these circumstances.”

And there’s the rub, because in any urban setting, owners sharing walls, floors, and ceilings with other residents need to realize that they’ve bought into a certain amount—and a wide array—of neighborly racket. “You’re living in a multiple-dwelling building with people in close proximity to each other, in a city with constant noises,” says Mazzola. “You’re not going to find yourself dwelling in a library, so you need to give a little bit.” 

Cooper Smith is a staff writer/reporter for New England Condominium.

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