Mitigating Noise with Flooring

Q My family is a shareholder of one of eight apartments in a small co-op. The apartment directly above ours was sublet to a family in 1997 that signed an agreement specified by the board of directors requiring the apartment to have carpet in all rooms except the kitchen and bathrooms. Last year, this sublettor removed all of the carpeting because doctors advised that his three-year-old son was allergic to all carpets. Since then, the noise has risen to unbearable levels. The board offered to allow cork floors instead of carpet, but no action has been taken. Clauses of the lease state that any changes to the lease must be approved by 66 2/3 of all shareholders; the lessee should hold and enjoy the apartment, subject to the rights of present tenants; consent to subletting may be subject to the conditions which the directors impose; lessee shall not permit unreasonable noises; and the lessee is in default of lease provision thirty days after written notice.

Can the board of directors issue a new condition spelling out the thickness of the required carpet or require cork floors with thickness requirements? What steps can we take to ensure enforcement? What are we legally allowed to do?”

—Noise Nuisance

A “When trying to mediate noise problems such as these in the cooperatives we represent,” says Lawrence DiGiovanna, Esq. who has his own legal practice in Brooklyn, “We start by quoting the title of a Paul Simon song, One Man’s Ceiling is Another Man’s Floor,to remind parties living in an apartment or common interest community that comes with the burden of due consideration for neighbors and the compromises inherent in community life. When that fails, we look to the cooperative’s governing documents: the proprietary lease, house rules and bylaws.

“Although the house rules for the subject cooperative were not provided for our review, the board should determine whether they contain the following language typical of many cooperatives: “…the floors of each apartment must be covered with rugs or carpeting or equally effective noise-reducing material…” If this language is found in the bylaws, no change to the lease would be necessary since the language to be enforced already exists. While such language would be helpful, it may not be necessary since this proprietary lease, as most, contains language stating that the lessee/shareholder is prohibited from permitting unreasonable noises. Of course, the meaning of the term 'unreasonable' is subjective.

“Because the offending shareholder is alleging that the child has an allergic medical condition, the board may be required to extend a 'reasonable accommodation' to the shareholder under federal, state and/or city anti-discrimination laws. The accommodation would be to exempt the shareholder from the carpeting requirement. However, it would also be reasonable to require that 'an equally effective noise-reducing material' be installed. Cork would seem to be a reasonable substitute. The thickness of the cork should be adequate to provide an effective level of noise reduction.

“Sometimes, a letter from the co-op’s attorney will be adequate to get the parties to cooperate and compromise in reaching a solution. However, the attorney’s letter is not required and may not be sufficient to commence the more formal process of enforcing the terms of the proprietary lease. We prefer to have formal notices, the ones that are part of the enforcement process, come directly from the co-op board.”

“So, if all else fails, a formal notice to cure the default should be sent to the shareholder in accordance with the notice requirements of the proprietary lease and, if the condition is not cured within the 30 days provided in this particular lease, the lease can be terminated by notice, the shares and lease auctioned at a public sale and/or possession of the apartment sought through a landlord/tenant summary proceeding. All notices should be sent to both the shareholder and the sublettor.

“If the board would rather not escalate the matter to a landlord/tenant dispute in which the shareholder risks the loss of the apartment, the board could commence a court action seeking a declaration of the rights of the parties and a mandatory injunction in which the court would be asked to order the shareholder to install the cork or other effective noise-reducing material. Violation of a court’s order could be punishable as contempt of court.

“Another alternative would be to determine when the sublease expires. Most co-ops require that consent to subletting be reconsidered upon each renewal of a sublease. If the board is dissatisfied with the shareholder’s and subtenant’s response to its requests to remedy the floor covering issue, it could decline its consent to the renewal. If the subtenant failed to vacate at the expiration of the sublease, a similar process to the one described above for a default under the lease could be commenced.

“Noise issues are among the most difficult disputes to resolve in a community living environment. Co-op boards should make reasonable efforts to diffuse the acrimony that is common in such situations. Often it becomes necessary to resort to judicial intervention. Uncertainty in the outcome of any case due to the divergent approaches various judges may take in addressing a noise problem coupled with the cost of litigation, creates an incentive for the parties to amicably resolve such disputes and to heed Mr. Simon’s admonition : “It's just apartment house rules; … Remember: one man's ceiling is another man's floor.” Paul Simon, 1973.”