How to Build Effective Case Against Noisy Residents
Loud music. Raucous late-night parties. Constant, excessive noise. Your worst nightmare, right?
Chances are you've probably heard or received complaints about these situations. Some of them were probably easy to deal with. Others weren't. And when they happen frequently, and the same resident is the source of the noise over and over again, that's a completely different story.
Indeed, the problematic resident—the one who ignores several warnings and seems indifferent to the fact that he is disturbing others—may need to be dealt with using much stronger means. You may need to take this type of resident to court.
Site owners or managers are successful in evicting noisy residents only when the evidence against the residents is well documented—and, often, when there is other disruptive behavior along with their noisiness that showed a pattern of problems. It's not impossible to get rid of a truly bothersome noisemaker, but it may not be easy.
Slow Process, Second Chances
Don't expect to take a noisy resident to court tomorrow and be rid of him next week. Getting a court to evict a noisy resident is a slow, uphill battle, notes Sally Unger, a New York-based attorney who specializes in real estate and housing court litigation. “It's most likely going to be a progressive process,” Unger explains. “And judges rarely evict based on noise alone.”
Many times what happens, she says, is that the resident is given a second chance. “If you have a good case, the judge often will give the person a probationary period,” she says. “The next steps would be harsher, eventually leading to eviction if that is warranted.”
If you do succeed in having the court order the resident to stop the noise or possibly face eviction, your troubles are over, right? Not likely. “In my experience, judges really do not like to evict people from house and home,” Unger says. “The evidence has to be strong.”
Build Your Best Case
Unger says that the law of New York State does not permit booting a resident from your property based on an isolated incident of loud noise or other nuisance behavior. There has to be more to your case than that. You have to substantiate the noisy incidents, as well as demonstrate the impact on those who were adversely affected by the noise. Here are Unger's recommendations about what to consider and how to build your case against a noisy resident:
Consider the level of noise. Is the noisy resident just a little loud or seriously loud? The court will take that into consideration, Unger points out. “With noise, the judge will consider the level of severity and seriousness of the noise, and whether it's an isolated incident or there is a pattern of problems,” she says.
So if a resident dropped some pots and pans on the floor early one morning and woke a neighboring resident who had worked the late shift, that's not going to cut it in court. But if the resident has a dog that barks at all hours and she makes no attempt to quiet or control the dog—and this behavior is chronic—that's a different story. “Something that consistently affects the quality of life of surrounding residents is a problem,” says Unger.
Establish proof of the problem. You have to build a “paper trail” of how you attempted to deal with the resident and the noise problem, following your customary procedures, Unger says. “You'll want to warn the resident about complaints you've received,” she says. “Of course, you'll need to be sure you do not identify who has complained. That could make an already bad situation worse.”
Put in writing to the resident that the noise is a problem, that it has to stop, and that if it does not, there will be repercussions, Unger explains. Tell the resident in no uncertain terms that you intend to seek relief in court and that could result in eviction.
Keep documentation in your management office that includes specifics of the noise issue, such as the time of day, the source of the noise (if it is known), and whether it was prolonged; what steps you took to advise the resident of the noise complaint; and what steps, if any, were taken to reduce the noise level, such as installing carpeting. “Many times, when you visit the resident, he may agree to take steps to ameliorate the situation,” Unger says. “That could be the end of the problem.”
Build strength in numbers. You and your staff may be annoyed by a resident's loud noises, but the court won't be concerned about that. What the judge wants to know, Unger points out, is how the noise has affected the lives of other residents. And the more residents who are affected—and are willing to say that they are—the better.
“It's best if there is support from a number of residents around the one who is the source of the noise who would be willing to testify about their problems resulting from the noise,” she says. “The more, the better.”
Think twice about recording noise. Unger says she knows of some cases where the offending noise was tape recorded for the judge to hear. That may or may not work, she points out.
“The resident can tape record the noise, but there could be evidentiary problems with submitting the recording as evidence in court,” she says. “At any rate, if a recording is made, it should be done by the resident who is experiencing the problem. What is likely to work better is to have the affected resident or residents testify so the judge can hear firsthand how the noise is affecting them.”
Unger suggests that residents who are affected should also be advised to keep a written log or record of their own. Often times, a resident who experiences problems will keep a calendar with notations of the time and type of occurrence. This assists the judge in evaluating the situation by demonstrating the history of problematic incidents.
If affected residents are not willing to testify or are reluctant to get involved, it will be almost impossible to win your case. Unger says that there are inherent evidentiary problems with written or secondhand evidence, so generally courts will not consider it.
Time your case. Unger says the judge will take a look at how recently and how frequently the offending incidents have occurred, as well as your response time. “If the same resident has been a problem repeatedly in the past six to eight months, that's one thing,” she says. “If you go into the court and say this has occurred a few times over the past four years, the court won't consider that to be much of a case. The judge would want to know why you didn't do something sooner. The judge would expect you to have dealt with the problem in a timely manner.”
Winning Court Support
If you find that you need to take your case to court to evict a noisy resident, the court will expect you to have complied with HUD's lease termination notice requirements. HUD rules say that you have to give at least 30 days' written notice before you terminate a lease for repeated violations at a HUD-assisted site [Handbook 4350.3, par. 8-13B]. The Handbook further states that you must have given the resident sufficient information about the cause for termination “to enable the tenant to prepare a defense.”
Handbook 4350.3 also notes the following: “Most state and/or local laws are more restrictive than HUD's minimum requirements; therefore, an owner should be aware of state and local laws governing terminations.”
Unger says that one of two things is likely to happen with your case against a noisy resident. The court will either:
Urge you to settle the case before it goes to trial. “Courts often want you to try to reach an agreement to give the resident a second chance,” she says. “In effect, such an agreement puts the resident on probation and requires the resident to stop the noisy, objectionable behavior. It puts a temporary hold on the eviction for, say, six months.”
Order eviction, but give the resident a chance to avoid it. You could prove your case at trial, and the court will order the resident's eviction. But often there's an “out” for the resident, Unger says. “If the resident says that she will stop the noisy behavior, she may be able to avoid the eviction,” she says. “You are able to move ahead with the plan to evict, if the resident's behavior does not change. Most likely, you would need to have a hearing on the issue of whether the resident did, in fact, cure the problem.”
If the noisy resident's behavior is part of a bigger problem—particularly if other behavior endangers her household or other residents at your site—the court is likely to allow you to move ahead with eviction without giving the resident any more chances.
The bottom line is that if a noisy resident disrupts life for others at your site—and particularly if that behavior is chronic and symptomatic of bigger problems with the resident—you and your other residents do not just have to live with it.
Sally E. Unger, Esq.: Partner, Kossoff and Unger, 217 Broadway, Ste. 401, New York, NY 10007-2909; (212) 267-6364; email@example.com.
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