For as long as people have been living in close proximity, the issue of maintaining relations has been an important one. A good neighbor is a lot of things: sensible, reliable, understanding. But humans can be touchy beings, and when we’re living on top of each other - sometimes literally, in the case of multifamily high-rises – annoyances can turn into more than that. Neighbors in co-ops, condos, HOAs and associations can encounter a host of problems, ranging from noise to odors to fair usage of common spaces. And sometimes, situations can turn emotional.
Shut UP! ...What’s That Smell?
According to the property management pros we spoke to, the most common points of contention between neighbors are noise-related.
Josh Koppel, president of HSC Management Corp. in Yonkers, says he hears complaints about noise regularly. “I have people complain that their neighbors dance and move furniture all night long! I’ve had people who complain ‘I can hear their cat running across the floor!’”
Next down the list of gripes are smoke and other odors – another big problem area. Koppel says in co-ops there is usually a nuisance clause in the proprietary lease that addresses this issue – though of course that doesn’t mean that odor issues are magically eliminated.
“Smoke complaints are huge,” he says. “If it’s not a non-smoking building already, they’ll have to seal up every crack and crevice...to stop the smoke from emanating. It’s a lot of work, but if you want to smoke, you can’t bother your neighbor.”
A heavy smoker in a building Koppel manages is affecting quality of life for “everybody on that floor, above and below,” he says. The man is bedridden, and “Between the chain-smoking and urine smells emanating into the hallway and other apartments,” Koppel says the odor complaints are constant. “[We] had the walls sealed, we did everything we can possibly do. The walls [in the man’s unit] are yellow, and there are burns in the carpet. We have to take it to court.” Most disputes don’t have to result in litigation, but in this case, there was nothing else to do, he says.
Whose responsibility is it to maintain good relations between neighbors in a multifamily co-op, condo, or HOA?
The first thing Koppel advises is that neighbors try and deal with disputes person to person. “We recommend direct contact at the beginning,” he says. “‘Did you speak to your neighbor? Why not knock on their door?’”
And indeed, according to Bill DeMille, president of Chicagoland Community Management Inc. in Chicago, a little bit of courtesy and understanding is what makes a successful community. “Everyone has to be reasonable and realize they live in a close community,” he says. “Successful living requires everyone be cognizant of living in close proximity.”
And what happens when a dispute can’t be settled the old-fashioned way, neighbor to neighbor?
In those situations, boards or building managers are often the next line of defense. But what is a board legally required to do when it comes to mediating disputes between neighbors?
“It all depends upon the board and how they function,” says Stuart Halper, co-owner and executive vice president of Impact Real Estate Management, which has offices in Manhattan, Queens, Westchester, and Long Island. “Some boards don’t want to do a thing, and some boards are very active.”
What typically happens with the properties and associations DeMille handles in Chicago is residents first alert the building manager or staff member who would take steps to verify that there is indeed an issue, and would then try to get both parties to reason with each other. If that intervention fails to resolve the situation, the next step is going to the board.
“Boards don’t have to step in, but it depends what the issue is,” says DeMille. “If there’s one unit owner causing a nuisance to others, the board may well have to step in. [It] may simply be a matter of notifying the owner that there’s an issue. Then there could be a hearing.”
“If one neighbor is really causing a nuisance and undue concern for their neighbors and violating the peaceful enjoyment of their neighbors, there’s a chance for litigation,” DeMille continues. “More often than not it doesn’t get that far, because I think most people are reasonable.”
Management pros recommend that boards have dispute resolution protocols built into their bylaws or governing documents. That way, there is a clear set of steps spelled out for everyone who may be involved in settling a dispute. When there’s no confusion as to how a conflict between neighbors gets addressed, there is less potential for escalation and further problems. In Illinois, condos and community associations are actually required to have dispute procedures in place, according to state statutes, DeMille says. Other states – including New Jersey – mandate the use of alternative dispute resolution (ADR), which involves conflict-management approaches, prior to the filing of a formal lawsuit in multiple contexts, including condo and HOA communities.
Rules and regulations or bylaws will set the standard and will then allow boards and managers to enforce the rules with penalties, says Halper. While each board’s procedures could be different – some may first require a hearing with the affected parties, while others issue warning letters, and some impose fines for offenses – the rules must be clearly articulated, fair, and consistently enforced. “They can’t be arbitrary and capricious,” Halper says, or boards will eventually find themselves on the wrong end of a lawsuit.
DeMille concurs, and strongly recommends that boards have these dispute regulations in place because they can also protect the boards themselves. “It would be our recommendation to do that,” he says. “If they don’t, like everything else they’re opening themselves up to possible litigation.”
More On Mediation
When a dispute goes above the board’s pay grade, so to speak, mediation is often advised. Mediation is a process by which two or more parties privy to a dispute are brought together with a mediator who helps them to resolve the problem at hand. Mediation is one facet of ADR and is widely practiced in disputes involving residential shareholders and unit owners. As a process, it’s less formal – and far less expensive and confrontational – than traditional court proceedings, and does not involve a judge.
Sheryl Mintz Goski is a professional mediator and attorney licensed to practice in New Jersey, New York, and Florida. A mediator acts as a third party facilitator, she explains. The mediator may speak with both the parties together, privately, or some combination of the two.
“The parties will tell you things as a mediator that they will not tell the other side directly,” she says. “It’s a very visceral and nuanced practice” that is becoming increasingly widespread. “It’s a beautiful process in the condo and co-op field, because people have to continue to live with each other,” she says. “You’re better off resolving it [than going to court].”
Some boards even have an ADR committee, which is something Goski recommends writing directly into the bylaws. “Before a unit owner wants to bring an action against another unit owner, they go to the ADR committee. It’s about people working together,” she says, adding that the committee is informal in nature and listens to both sides of a tenant dispute. “It’s a smart idea because it de-escalates tension between people who are very proximate. You just never know when there’s going to be a big fight. It doesn’t cost you anything to put [an ADR policy] in.”
The New Jersey Academy of Mediators and Arbitrators maintains a list of links to other organizations and information sources that can be invaluable to boards and managers embroiled in conflicts. Visit http www.njmediators.org/links for more information, or call 813-600-3678.
Mediation/arbitration professionals and organizations typically charge a non-refundable administration fee in addition to hourly mediation fees, which range from around $150 to around $400 per hour, though those are only rough numbers – obviously, it’s important to confirm fees and shop around before engaging a mediator. Goski says she charges a similar hourly rate for more complex commercial or construction cases, but suggests a flat fee may be appropriate for more one-on-one disputes. She adds that bylaws could dictate who pays for the mediator’s services in resolving intra-building disputes.
The Cost of Conflict – and Where to Find Help
Not only are legal battles financially costly for a building or association, but a community riddled with ongoing conflicts and bad blood between neighbors and board members may soon find itself undesirable to prospective new shareholders or owners.
“You don’t want it to be a legal issue,” says Goski. “You don’t want it to be in the newspaper. That will denigrate the value of living there.”
Halper concurs. “You don’t want to be known as a bad building with bad quality of life,” he says. Such a reputation may dissuade brokers, buyers, and even lenders.
And even if the issue doesn’t get as far as litigation, ongoing problems can affect residents beyond just the parties involved in the dispute. Simply put, “Negativity spreads,” says Koppel.
There are many organizations that teach boards and managers with how to deal with conflict resolution in New Jersey, including the aforementioned New Jersey Academy of Mediators and Arbitrators (www.njmediators.org), the Justice Garibaldi American Inn of Court for ADR (www.inns.innsofcourt.org/for-members/inns/the-justice-marie-l-garibaldi-american-inn-of-court-for-adr.aspx), and the New Jersey Association of Professional Mediators (www.njapm.org),
The Community Associations Institute (CAI) is a national organization that also offers educational and reference resources for boards and owners, and is another great resource, DeMille says.
For mediation background information and services, the American Arbitration Association (AAA) is a good resource, Goski says. The non-profit organization has been assisting individuals and organizations since 1926, following the passage of the Federal Arbitration Act, which aimed to promote and assist out-of-court dispute resolution.
Maintaining the peace between residents is beneficial for all. Residents, from shareholders or unit owners to the board to the managers to potential future neighbors, all do well when issues are kept at a minimum. Neighbor-to-neighbor problem solving and mediation are two ways to keep relations amicable. Boards can also assist in the process by having guidelines in place to manage conflict.
Georgia Kral is a staff writer at The New Jersey Cooperator.