Q&A: Noisy Children

Q I have been a shareholder and board member in my building for the past 20 years. A year ago, a new shareholder with two small children moved in above me, and since then noise has been a constant, serious problem as the kids’ room is directly over my bedroom. The house rules explicitly require apartments to be 80-percent carpeted, and the room overhead is clearly not. I have complained time and time again about the situation, but to no resolution. I have on occasion tried to speak to the upstairs residents, who seem to think that there is no problem, and have even gone as far as retaliating by stomping their feet heavily across the room and dropping heavy materials on the floor. I am at my wit’s end. What are my options?”

—Frustrated by Noisemaker

A “In your question you note that you ‘have been a shareholder and board member for the past 20 years.’ I will answer this as if you are the affected shareholder and not a board member. It is arguable that your cooperative has a fiduciary duty to enforce the house rules against the upstairs shareholders, including securing a court order and/or share rescission,” says attorney David Byrne of the Lawrenceville-based law offices of Stark & Stark. “Thus, should the cooperative fail to so do, you may have a claim against the cooperative for breach of fiduciary duty. However, this noise-related dispute and/or violations are notoriously difficult for cooperatives as the unreasonableness of any noise is subjective. If the house rules require carpeting, as you say, and you have made a formal complaint with the cooperative regarding noise, a strong argument exists that the cooperative has the duty to determine whether the floors are carpeted, irrespective of whether there has been an unreasonable amount of noise. If the cooperative does find a carpeting-related violation, a strong argument exists that the cooperative has an obligation to make its alternative dispute resolution program available, as an alternative to litigation. If this does not result in an agreement between you and the problem shareholder, the cooperative has arguably satisfied its legal obligation to you. The counter argument to that would be that the cooperative must take legal action, generating legal fees to the detriment of all shareholders to force compliance. Given that there is no certainty that a court would enforce the carpeting rule, or agree that there is unreasonable noise, or that the cooperative has the power to act, or that the cooperative has the right to recover its legal fees, etc., it would be very hard to argue that the cooperative would be breaching its fiduciary duty by failing to take legal action. You as a shareholder and as a citizen have the right to commence your own action, in superior court or municipal court, to secure a change in the shareholder’s conduct.

“One last thing, please consult the cooperative’s legal counsel in relation to your status as a board member and as a shareholder plagued by another shareholder’s rule violation. This presents a difficult situation for you personally. You must ensure that any votes and/or influence of yours is based on your good faith, and on the interests of the cooperative overall, and not just you personally.”

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