KASS: Talk with neighbors about nuisance

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Q:     Owned my condo over ten years. The owner in the upstairs unit has rented theirs out to tenants who argue all time, vacuum one in the morning and beside the two kids they have always have three to five kids under the age of ten over until late at night actually play football soccer with the father thru out unit. I have complained numerous times to tenant who says kids have right to play it’s their home they can do as they want. The management for our condo told me they no longer get involved with neighbor disputes. The other day, my bathroom leaked for the third time after kids playing in bathroom left their tub running again. Management said I have to work out with neighbor since they don’t get involved. But then says it can not give out owners personal information so I can contact them. The male tenant came to my door to say he is sick of my complaints and can’t prove they caused damage to bathroom so they are not paying. Can management just decide not enforce by-laws about noise and damage? Is it worth hiring a attorney? Have recordings of what I hear in my unit from the tenant upstairs Will ruin me financially if I have to do short sale; any advice would be appreciated. Sal.

A:     Sal. Yes, you should hire a local real estate attorney. This kind of situation is a major dilemma for condo boards and management. At what point in time should they step in between a dispute such as this?

Yes, the first thing an owner should do is to talk with the neighbor. They may honestly not realize they are creating a nuisance. But once it is clear that the neighbors (be they owners or tenants) are unwilling to resolve the issues, then clearly the condo board and management must jump in. To my knowledge, every condo bylaw contains language that owners/residents/tenants cannot create a nuisance. The board has an obligation to get involved and your attorney can – and should –put pressure on the board (and management) to get involved.

As for the water problem, hopefully it won’t happen again. But if it does, immediately contact the upstairs residents, and tell them there is a leak. Contact management to report the problem – even if they won’t get involved. And take lots of pictures, especially near the ceiling. You want someone to see the leak while in progress.

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Q:   I am the owner of a town-home style condominium. Our bylaws stipulate that the association is responsible for maintenance of the exterior of each unit. I have had water issues (rain water entering the basement) off and on over the past twenty years, and the association has paid for various solutions, including patching a foundation crack and installing an outdoor drain system. Unfortunately, the drain system has not completely alleviated the problem. During a heavy rain last June, water entered over the foundation and dripped down the basement wall in the vicinity of my circuit breaker box. I alerted the association and the management company, but no action was taken. During a heavy rain in July, water again came over the foundation, dripped down the wall, and, this time, got into the circuit breaker box and shorted out the GFI breaker. I paid to have the breaker replaced. Our bylaws stipulate that the home’s electrical system is the responsibility of the homeowner, but I contend that since this electrical malfunction was directly caused by an exterior issue, the association should pay for the electrical repair. They have so far refused to pay. I requested that the management company consult with their legal counsel regarding this situation, but to my knowledge they have not done so. Do I have any recourse? Paula.

A:     It would have been a good idea for the association’s lawyer to provide an opinion on this issue, but of course – short of possible court action –you can’t force the board to get such a legal opinion.

And this is really a legal question which I cannot answer because (a) I do not have all of the facts and (b) even if I do have everything, I cannot provide legal opinions in this column. My answers must always be general.

You – or better yet your own attorney –must carefully review the association’s legal documents. Often, there is language in those documents whereby the board cannot be held responsible for certain things – such as water damage from a storm. Of course, if it can be shown that the board was negligent in taking prompt action to correct the problem, then there may be some culpability.

And we always have to be aware of the “business judgement rule”. This is a legal concept where courts say “we will not get involved in board’s decisions, even if they are wrong, unless of course there is a clear violation of our public policies or if the board was acting illegally.”

Talk with your own attorney. And if there is more flooding, talk with your own insurance company; there may be coverage. And I am not referring to the Master policy, rather the HO-6 policy that protects you and your unit.