noisy neighbors / what if it’s you they are complaining about?

some advice, freely given, worth …?
I had one of those friend-of-a-friend-of-a-client conversations this week about a noise-related New York real estate issue that the FOAFOAC has. I was then thinking about sending the guy (let’s call him “M” to make it easier) an email with some further thoughts about how he might approach the problem, but realized there is a Manhattan Loft Guy post here, as this is not a problem unique to him.

The problem has to do with a neighbor complaining about noise coming from M’s loft, but let me start by noting how gratifying it was to see how this inquiry came about: the relation of my client emailed my client (paraphrasing) “your agent seems like a savvy fellow; do you think he’d mind speaking with M about this problem, ASAP?”. One email led to another, which led to a phone call from M, which led to me thinking more about his problem, which leads to … Manhattan Loft Guy.

old school loft, with old school loft usage
M lives in a loft in an area that has seen a great deal of change in the 15 years he has been there. He has had a recording studio in his loft since back in the day, now he has a neighbor who claims the music is disturbingly audible in the loft next door. The long and the short of it is that M has, of course, got soundproofing materials around his sound studio, believes that any sound escaping into the loft next door does not rise to the level of “nuisance”, but he does not want to be a jerk about it so will work with the neighbor to reduce the sound seap. Problem is, the neighbor next door is a subtenant of that loft’s owner (let’s call the subtenant “S” to make it easier), and that loft’s owner is not being as cooperative as he might be (he gets “O”).

The managing agent and coop board (or is it a condo? doesn’t matter for this discussion) are involved, basically looking for low-cost peace. The advice of M’s acoustic engineer is that M has done what he can on his side of the wall, but that S should get total relief if some work can be done on O’s side of the wall between the two lofts. M is willing to pay for that work, but O refuses to have anything done on his side of the wall.

civilization depends on cooperation, even (especially?) in lofts
Impasse! M has not done anything that he hasn’t been doing for 15 years; S is still unhappy; the coop board and managing agent are still lurking; M is still willing to go the extra mile and pay for remediation in his neighbor’s loft but O (who has never lived in the loft he owns) refuses.

Without the cooperation of O, M can’t make S’s irritation go away, so M is wondering things like:

• can S sue me?
• what leverage does the coop board have against me?
• if the City does not think this is a “nuisance”, how do i leverage that?, and
• I’ve already spent $X on an acoustic engineer, and I am prepared to spend more on the other side of the wall, but how can I make this stop??

in the real world of this specific building, some of this will depend on the specific facts, such as the level of sound bleeding from M’s loft into S’s living space. And a lawyer might analyze these issues in a different way than Manhattan Loft Guy, licensed real estate salesperson and associate broker. But M was looking for a description of the practical world, so I gave him the analysis in this post, which I would supplement with some of the stuff that only he would recognize as additional detail or nuance, beyond our phone conversation.

legal relations are important, sorta
Lawyers would love the wrinkle provided by the fact that it is S, not O, whose quiet enjoyment of that loft is at stake. For, as between S and M, or between S and the coop board, as I see it S has no rights. S has rights only vis-a-vis O, and only those rights enumerated in the sublease or available under landlord-tenant law. So the (limited) good news for M is that S should have no legal ‘standing’ to sue him directly (assuming that there is no actionable “nuisance” under the City’s noise regulations, which would give rights to complain to anyone within earshot, whether or not in the same coop).

Ultimately, if S remains unhappy with the sound levels, he has the right to get out of his sublease with O. I don’t see a direct claim against M doing more than expend legal fees, waste time, and make that coop a less friendly place to be.

I doubt even whether O has the right to sue M for breach of O’s right to “quiet enjoyment”, not just because O does not reside there but because any residents rights to quiet enjoyment depend on the proprietary lease between the owner and the coop (or in a condo, on the terms of the by-laws, house rules and similar corporate governing documents). But the coop (or condo) board could claim that M is in breach of his duties under his proprietary lease (for example, by creating a “nuisance” under building rules, without regard to whether sound levels are high enough for an official NYC nuisance).

The board, however, could definitely act, and its available remedies include an action to cancel M’s proprietary lease, forcing him to sell his shares.

The (only moderate) good news for M is that if any court got a look at this, or if the managing agent or coop board really got into the details, M would have the floor to show that his acoustic engineer says (blah, blah … meaning, not a nuisance) and either the court or the managing agent (board) should be interested in the parties reaching an agreement that keeps everyone happy.

Unless M got a judge on a bad day, or a managing agent with a particular axe to grind, his story is reasonable:

• i don’t think my sound studio is a nuisance for S (just as it hasn’t been for anyone else living next door for 15 years), but
• since I value neighborly relations, I am willing to pay for amelioration next door (my engineer says I have done what I can on my side), and
• S would be happy for me to do that, but
• O is a jerk will not cooperate (even though he has never lived there and this solution will cost him $0.00)

Problem for M is, if it gets this far, there are no guarantees. And there is the money involved in fighting, in addition to the personal, everyday stress from fighting, and from the possibility of a judge (managing agent) disagreeing that he has been reasonable.

Put another way, once someone has decided to wrestle with you (and has gotten a grip) there’s no way to disengage unilaterally without complete surrender. If they don’t let go, you have to persuade someone with authority (court, coop board) to break their fingers if they don’t release.

An unfortunate fact of life in the Big City. (I touched on some noise / nuisance / Big City issues in my September 1, 2011, nothing stays the same, a/k/a the gentrification issue in Chelsea + Lower East Side, and in the posts linked in that one. If you go there, be sure to click on the link about the butter-and-egg guy in Tribeca who one day in the 1990s realized his big trucks were no longer safe in a nabe filled with strollers, which has what may still be my favorite quote about gentrifying Tribeca; and, yes, I will make you click through to find that quote.)

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© Sandy Mattingly 2013