Habitat Staff in Co-op/Condo Buyers
April 28, 2011 — Noise, whether caused by the co-op board's action or inaction, can deeply affect your quality of life and what courts call the quiet enjoyment of your home. What are you options?
Here, in easy Q&A form, are answers to common questions regarding noise affecting co-op apartments.
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Q. My co-op apartment is unbearably noisy because it's near one of the building's ventilation units. May I withhold your monthly maintenance until the situation is corrected?
A. No. Under a typical proprietary lease — the co-op's principal document — the co-op must keep the building's structure and common areas in good repair and "maintain and manage the building as a first-class apartment building." In accomplishing this, the co-op board is protected by the Business Judgment Rule, which insulates its decisions from court review provided those decisions are consistent with the co-op's contractual arrangements and do not involve bad faith, self-dealing or discriminatory or otherwise unlawful conduct.
So, if your co-op installed and maintains the ventilation unit consistent with these responsibilities and standards, then one might conclude that your co-op is acting properly and will readily prevail in litigating against you.
Q. Do I not have any options?
A. You do have options. The typical proprietary lease provides that shareholders shall "quietly have, hold, and enjoy the apartment without any trouble … from" the co-op. This is a version of what is known as the "covenant of quiet enjoyment." This covenant is deemed implied in all New York State residential leases, including co-op proprietary leases, even if not formally stated. To successfully assert this, you must establish that the board's conduct deprived you of the beneficial use and enjoyment of your apartment.
Consequently, the covenant of quiet enjoyment might apply to the noise from the ventilation unit if you could establish that it prevented you from using all or a portion of your apartment. In this event, you'd be entitled to compensation to reflect this.
Q. What other options do I have?
A. A co-op shareholder might also suffer what is called "constructive eviction," meaning you've been compelled to abandon the apartment because of some condition affecting it.
In the 1970s, the New York State legislature perceived that the covenant of quiet enjoyment did not provide tenants with adequate recourse in the event of the substandard conditions in their apartments. It was considered unfair that tenants had to abandon their apartments to justify not paying rent. In 1975, the legislature enacted Real Property Law (RPL) Section 235-b, which codified what is commonly known as the "implied warranty of habitability." That meant that a tenant could assert claims against substandard conditions, and withhold rent while staying put.
Co-op shareholders likewise felt free to withhold maintenance — although savvy ones realized it's always better to continue paying maintenance and to sue their co-ops for affirmative relief. That way, if you lose, you're not responsible for the co-op's legal fees.
Q. How do courts feel about noise lawsuits against co-ops?
A. The courts are not fond of subjecting co-op boards to noise claims under the warranty of habitability. They ruled in a seminal case (Park West Management Corp. vs. Mitchell) that "a landlord is not required to ensure that the premises are in perfect or even aesthetically pleasing condition." And so even though noise and related vibrations can affect the habitability of an apartment, courts will put you to the test of proving that health, wealth or safety is at stake, and that the co-op acted irresponsibly in responding to the problem. As long as the co-op acts reasonably to reduce the impact, you would probably not have viable claims.
Q. So do co-op boards get a free pass regarding noise caused by its actions?
A. No. Noise complaints are similar to other assertions that the co-op is not properly maintaining the habitability of the building. And the installation, operations, and maintenance of the ventilation unit are within the co-op's control. Therefore, if the noise is proven excessive, you're arguably entitled to some relief. Consistent with this, courts have ruled against co-ops with regard to noise from building systems.
If the ventilation unit used as an example at the start of this Q&A exceeds New York City legal standards for noise or vibration, or is otherwise demonstrably intolerable whether in terms of intensity or duration, then you could very well prevail in litigation in an amount that exceeds the withheld maintenance, and recoup your legal costs.
While the courts will give deference to a co-op's business judgment about the location, specifications and condition of the unit, that surely is no blank check, especially if less offensive alternatives are available for reasonable costs.
Q. Do co-op boards have a responsibility to do something about loud neighbors?
A. Yes. An appellate court in 1995's Nostrand Gardens Co-op vs. Howard affirmed that a shareholder was entitled to a 50 percent abatement of rent because of "excessive noise emanating from an apartment that neighbored the [shareholder's] apartment through the late night and early morning hours…" The court was impressed with the shareholder's "evidence regarding the nature, scope and duration of the breach and the effectiveness [presumably, ineffectiveness] of the measures that were taken by the landlord to abate the nuisance."
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