Neighbor-To-Neighbor Battles- Leave It Up To The Neighbors To Duke It Out?

Neighbor-To-Neighbor Battles- Leave It Up To The Neighbors To Duke It Out?

I say no. But I also say, seek a balance. A Board is not required to expend association sums to sue. The balance is somewhere in between doing nothing and taking aggressive action. And if you are one of the neighbors, don't count on the Board to be the "deep pocket" when you sue the neighbor. Try hard to diffuse the situation, or get the neighbor to mediation. Don't retaliate. If you end up in court you want to be the party that tried hard to resolve the situation. Here is why:

The problem: Neighbor A (single lady) lives in the upper unit and she has hardwood floors and walks like an elephant, even though she is 85 years old ... stomp, stomp, stomp. The local realtors know she didn't want anyone below her because when they were showing unit B, the "stomper" was always trying to chase off buyers. Neighbors B who bought the lower unit liked the location, the condo, and the price (lowered because of the nuisance disclosure) and felt like they could make friends with anyone by taking cookies upstairs. They endured some stomping, and they took lots of cookies upstairs. Things didn't work out exactly like they thought they would.

Neighbors B like to barbecue out on their front deck. Though they try hard to be good friends with the upstairs neighbor, they can't get neighbor A to stop "stomping". Neighbor A can't get neighbors B to stop barbecuing. She says she is allergic to barbecue smoke. They tell her to keep her sliding glass door shut. She says she does, and the smoke still gets into her unit. Neighbor A starts sweeping her deck when neighbors B barbecue. Since there are slats in the deck there is always a lot of dust raining down on neighbors B. Neighbors B start barbecuing more often, going from once or twice a week to every other day. Neighbor A starts showering late at night, claiming she has to wash off the barbecue smoke before bed. Neighbors B start flushing the toilet when neighbor A is in the shower and playing TV late at night, very loud. They claim they need to "drown out" the shower noise. Neighbor A starts stomping more, .... And ... you get the picture.

They both file complaints with the Board and neighbor A wants a development-wide ban on barbecuing, neighbors B want the stomping, the sweeping and the late night showering to stop - what would you do?

The solution: The Board invites the parties to a meeting - there are 12 board members, me, and neighbor A and neighbors B. The Board listens carefully to all parties, then we confer, sending the parties on their way. We brainstorm a solution, and I am asked to issue a "demand" in writing, to the parties.

Neighbor A is to lay rugs and pads down in the traffic areas, and remove her hard soled shoes when in the unit. She can wear supportive slippers or soft soled shoes (she is 85 after all). She is to stop stomping and stop sweeping when neighbors B are barbecuing. The Board offers to have the association's maintenance worker add a strip of insulation around the sliding door to help keep out the barbecue smoke. She is to shower by 10pm.

Neighbors B are to limit barbecuing to no more than 2 days a week (which was the pattern before the fight heated up). Alternatively they could move the barbecue to the back porch which is not below neighbor A's deck (although the board believes she never used the deck) and barbecue every day if they want. They are to stop flushing purposefully when neighbor A is in the shower and turn down the TV.

The decision letter stated that these were viable solutions but if these neighbors did not follow the Board's directives, and either continued to cause a nuisance, the Board would consider disciplinary action. The letter also noted that if they continued to "prod" each other in the same ways, and both remained part of the problem, there was going to be no further action on the part of the Board, and that they would have to sort it out themselves without the help of the Board. The Board suggested that if the problems continued, the parties should go to mediation and provided contact information for local mediators.

These people continued to fight, no one gave an inch, and neighbor A got a lawyer and sued neighbor B and the Association. Neighbors B got a lawyer and cross-complained against neighbor A and sued the Association.

On behalf of the Association I filed a motion for summary judgment to extricate it from the dispute and recited the facts, offering the letter (written by me on behalf of the Association) to the court as evidence of the board's attempt to get the parties to resolve the matter.

The court granted the motion and the Association was let out of the litigation. This had happened once before in my career and in that case the parties deflated, once the deep pocket was out of the picture. But that didn't happen here. The parties fought viciously in court spending a lot of money until the Judge "nonsuited" both parties (and dismissed the case), and there was an article in the local newspaper entitled "Judge Douses Barbecue Case."

Both parties then demanded an audience before the Board. The Board listened to each party's attorney, neither party would come, neither was willing to be in the same room with each other. The first attorney made her case to the board claiming failing health of the now 86 year old woman. The second attorney did much the same, but also asked to show the board a video tape (yes, this was quite a few years ago) of the neighbors B and their doctor stating that Mr. B's health was threatened. I and the Board graciously declined to watch any video tapes and noted that we could certainly believe that the parties' health had deteriorated during this long and arduous battle, between them.

Another letter was issued, and this time the parties were told this: One of the board members had volunteered to meet with the parties together with a mediator or with each party separately if they couldn't stand to be in the same room with a social worker (this was a seniors' development where there was such a person available) to try to come to an agreement. If they refused, they would be back on their own. She (the Board member) would opt out.

Neighbors A's attorney had the gall to call me and threaten to sue the Board if it did not take action against the stomper. I told her I thought not and asked her how she intended to do that when the judge had thrown the case out of court? She dropped the subject and went away. Maybe she didn't know I knew.

Both parties suffered greatly in health but apparently neighbor A was as strong as a grisled old bird. Mr. B died within 6 months of a heart attack or stroke. Mrs. B moved back East to live with one of her adult children. Unit B went back on the market. I never heard another peep from anyone. Maybe the stomper was too tired to stomp anymore.

What is the moral of this story?

If you are the board: if the Board recognizes a duty to investigate the situation and attempts to resolve the problem via reasonable demands, it may be vindicated and even let out of any litigation the parties file against each other. If unable to get out on a summary judgment motion, it will certainly be more likely to get a defense verdict if sued, if it has made an effort! I have learned this through two cases, different associations, where neighbors were being unreasonable, and continued to be even after the boards proposed very reasonable solutions. In these two cases the association and board members were let out on summary judgment motions. The court recognized there was nothing the board could do. And in many other cases, boards received reasonable treatment in court  (namely beneficial verdicts and attorney fees awards) after being able to show the attempts made to help two disputing parties resolve their differences.

If you are one of the neighbors: escalating the dispute by retaliating and creating a vicious circle doesn't resolve the fight; it makes things worse! An escalated fight adversely affects one's life, one's peace-of-mind and ultimately, one's health. And for a double whammy, it creates a necessary adverse disclosure issue if one wants to sell or rent their home to get out of the situation!

These kinds of battles in court require endless sums of money and often leave the parties battered and bruised. Don't let it happen to you.