Chapter 10 - § 10.16 • NOISE

• Jurisdiction: Colorado

§ 10.16 • NOISE

Noise is one of the most common sources of conflict in common interest communities, especially those with shared walls or stacked units.⁵³⁴ Noise has many sources, but fits into one of two categories: (1) ambient noise, such as musical instruments, televisions, stereos; and (2) impact noise, sounds produced by objects (generally feet or inanimate objects like furniture) striking or scraping hard surface flooring. Both categories may be addressed by specific rules on noise, on standards for insulating hard surface flooring,⁵³⁵ or by general proscriptions on annoyances or nuisances.

An early and often cited Florida case on the subject of noise is Candib v. Carver.⁵³⁶ In that case, a unit owner installed hard surface flooring without insulation or soundproofing and without prior approval of the association as required. His downstairs neighbor was disturbed by impact noise and brought a nuisance action.⁵³⁷ The court concluded the facts did not establish a nuisance, but that a cause of action could be based on the condominium declaration, which provided: "No nuisances shall be allowed upon the condominium property, nor shall any use or practice be allowed which is a reasonable source of annoyance to unit owners, or which interferes with the peaceful and proper use of the condominium property by any condominium owner . . . ."⁵³⁸ The appellate court decided that language granted "a right of protection against a degree of annoyance, which may be less than a legal nuisance."⁵³⁹ The court also remanded the case for a determination of whether the plaintiff was entitled to an injunction to prevent "any use or practice which [constituted] an unreasonable source of annoyance or which [interfered] with the peaceful and proper use of [the] unit by the plaintiff."⁵⁴⁰ The defendant ultimately prevailed perhaps because the vagueness of phrases like "unreasonable source of annoyance" and "interfere with peaceful and proper use." More definitive language that specifically regulated noise or that prohibited loud noise at certain hours might have changed the result.

In an Indiana case,⁵⁴¹ a downstairs neighbor was more successful. The defendants there installed uninsulated marble flooring that resulted, in the view of the trial court, in an effective obstruction to the unfettered use of the plaintiff's unit, injury to his emotional health, and offense to his sense of hearing. The appellate court granted the plaintiff damages and an injunction requiring installation of "good dense carpeting on good dense reconstituted urethane padding" and submission of evidence to the court of good faith compliance. The appellate court's decision also addressed two other issues. First, it said that consent from the original, developer-controlled board was not determinative of the issue of whether a nuisance was created.⁵⁴² Second, it said that impact noise from uninsulated hard surface flooring can result in a recurring nuisance that will avoid a statute of limitations defense.

Practice Pointer
Expert testimony, usually from an acoustical engineer, is essential in nuisance cases based on noise. Expert testimony is needed both to establish the elements of the nuisance action, especially that the noise unreasonably and substantially interferes with the plaintiff's use and enjoyment of his or her property, but also to assist in formulating a viable remedy.

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