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Nuisances Often A Matter Between Owners

Posted in Reader Q&A

Question: Our condominium documents used to allow owners to put tile in their units. The documents were later amended, but those units with tile were “grandfathered.” The noise coming from the unit above is a serious problem for me. What can I do? S.C. (via e-mail)

Answer: If the tile is not a violation of the condominium documents, it seems clear that there is nothing that the association can do about the matter, nor would you have the right to insist on that.

Your sole remedy would appear to be an action directly against your neighbor for “nuisance.” Nuisance is generally defined in the law as the use of one’s property which annoys or disturbs another in their free use, possession, or enjoyment of their property. The use must render the ordinary use of the property uncomfortable and the harm must be substantial and continuous. Conduct that may cause inconvenience or mere annoyance to a neighbor is not considered a nuisance in the law.

  • Sidance

    What about documents that dictate sound proofing under the tile?  Our Village code requires sound proofing and permits for all floor installations.  Why can’t proof of permit work to correct the noise nuisance?  As in if you didn’t pull a permit you must pull up the floor to prove that you used sub flooring.

  • Retired2005

    Thank you for the topic and opinion.  I am the original owner of a condo that NEVER had tile
    installed nor mentioned it in their by-laws in 1980 or subsequently.  The subsequent owner tiled the kitchen, living room, hallways without benefit of sound-absorbing material.  Now a granddaughter and her current boyfriend and her 3 children are living upstairs in a two bedroom unit with the owners.   The noise of the toys and dropping of items has caused TWO of my tenants to leave.  They get up and play in the middle of the night, claiming one is autistic.   One tenant recorded it and sent me the tape.  Currently my tenants complain but want to see their son finish high school is this same district.  I have called the police in Ponce Inlet, FL and they tell me there is nothing they can do – the ‘company’ is living there year around and at least one has a job, but they have out-of-state plates and they claim
    these free-loaders are ‘company’.   Four adults and 3 and 4 children in a 2 bedroom unit is too many people, but apparently Volusia County has not modified their law to match what Hillsborough does in determining the legal limit of the number of people who can reside in a unit based on the number of bedrooms.  You have given me hope, as a retired court reporter, that I can file a lawsuit against this ‘nuisance’ owner as I will also have witnesses from neighboring units that are sick and tired of the noise.    I have complained to the Condo Association to no avail.  Should I join the Condo Association in as a Defendant along with the Nuisance Owners? 

  • If the noise bothers and annoys other residents it may be appropriate for the association to intervene.  If the association does not pursue any action, it is up to you whether or not to include it in the case.  The board has discretion and you would have to show that it abused its discretion by failing to address the nuisance.  You can likewise pursue the above unit owner for lost rent if tenants moved out due to the noise from above.

  • Owners should prove they installed the soundproofing at the time of the installation.  The contract should show whether soundproofing was installed and many boards inspect the unit after the soundproofing is in but before the tile goes down to ensure compliance with this type of rule.

  • Thank you for posting this article! I live in an HOA “stacked” condo complex where the neighbor above me installed hard-wood floors 10+ years ago (I’ve lived in my condo for about 11 years). They have grandkids that come over (and sometimes sleep overnight) and I can hear every footstep, scream and object that is dropped. In fact, someone seems to be lifting weights in the early morning hours. I not only have complained to the HOA, which will do nothing except send a letter to the neighbor to keep the noise down, but I have also talked to the neighbor who claims they are not doing anything out of the ordinary. The HOA told me to call the police, which I did. The police told me that unless it’s an outside noise disturbance, they can’t do anything. I will probably be selling or renting my condo out in the next year or two. Either way, the noise may still cause a nuisance for prospective buyers/tenants. Overall, the lesson learned has been not to buy a condo where you have neighbors above (or below—I can hear music and doors slamming below me). But for some people who are first-time home buyers and can’t qualify for the money needed to buy a home or even townhome, a “stacked” condo may be the only option (which was my case 11 years ago).