Controlling excessive noise in '55 and over' housing

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Oct. 25, 2012

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Rent it Right

Janet Portman
Inman News®

Q: We have begun renting in a "55 and over" housing. The problem is the renters upstairs. They babysit their grandchildren five days a week -- a 4-year-old and a toddler, for 12 hours a day. The kids run and throw things on the hardwood floors, making a lot of noise. Is there anything we can do about it? --L. White.

A: The situation you describe is hardly unique to those living in 55-and-over rental communities. In fact, the biggest tenant gripe, in close competition with landlords who don't do repairs, is annoying behavior from fellow tenants. Let's look at your issue first as if you were in a non-age-restricted environment.

The landlord is legally required to provide you with a quiet and peaceful place to live -- to preserve your right to "quiet enjoyment." This means making the rental accessible and usable, and taking care of situations that interfere with your ability to reasonably use it. The latter part includes stopping noisy parties and intervening when other tenants make trouble -- from drug dealing to unreasonably rude behavior to loud music. Landlords who fail to preserve a reasonably peaceful rental environment risk losing tenants, who may break their leases without responsibility for future rent.

The noise you're complaining of comes from children -- the question is whether the noise is unreasonable. And here is where things get sticky.

First, landlords may not refuse to rent to families with children in multifamily rentals. And children are not silent, even the best-behaved and good-natured. We all know this, it's just a fact of life, and residents of downstairs units must be prepared to put up with a reasonable amount of noise. Darn, there's that word again, but unfortunately, there's no hard and fast rule that will separate reasonable kid noise from the rest.

Children who have turned their bedroom into a bowling alley, or even infants who are inconsolable and loudly cry nonstop, have probably created a situation that would enable the downstairs neighbors to break their lease and move out. On the other hand, noise from normal activities would not.

Now, what about the impact of your "55 and over" housing? Under this federal rule, the landlord may require that at least 80 percent of the rental units be occupied by at least one person who is age 55 or over. That leaves 20 percent that can be rented by the general population -- which includes families. Tenants who move into these properties must be prepared to be downstairs from one of the 20 percent.

In other words, the noise from upstairs could just as well have come from a family that belonged to residents who are not 55 or over. That it comes from grandchildren who visit on a daily basis doesn't change the fact that you implicitly recognized that kids might be overhead when you rented your unit.

Have a talk with your upstairs neighbors, and perhaps involve management, too. Landlords are often quite willing to work with residents to solve problems like these -- by installing carpeting with thick pads, for example. But don't expect the landlord to threaten the grandparents with eviction -- evicting on the grounds of excessive noise from young grandchildren is likely to end up a nasty fight. Better to try to work things out.

Q: Is it against the law if a landlord keeps a renter's security deposit and then never fixes the "damage" the landlord claimed the renter made? Our former landlord presented a list of damage that justified his keeping our security deposit, and then never made the repairs -- he just kept the money. --Mike M.

A: Unless your state's security deposit law specifically forbids it (I'm not aware of any that do), landlords may deduct for damage beyond wear and tear even if they do not make the repairs. That's because they are being compensated for the diminished value of the rental. If they decide to forgo the repairs, they have the money but will presumably not be able to command as high a rent as they could if they had fixed the place up.

This result is true in most situations where someone pays you money to compensate you for damage they've done. What you do with the money has no effect on their obligation to pay it. And in fact, many of us pocket these payments all the time.

For instance, many of us have had the experience of being in a minor traffic accident that resulted in slight but fixable damage to our car. The person at fault, or his insurance company, pays us to repaint and take out the dings. But because the damage is superficial, the car is old (and may have a few other scratches), and we have no plans to sell it (its market value is not important), we keep that money instead of heading over to the body shop.

Your landlord may have gone through a similar thought process. Perhaps he feels that because the market is hot, he can leave the damage as is and still command a top-notch rent. Or, he may feel that the neighborhood is slipping, and spiffing up the place won't do him any good because he has to drop the rent due to market pressure.

Most landlords, however, will think twice before letting a nice rental deteriorate. And surely when the damage is significant, especially if it affects the rental's safety, they will take care of business.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord's Legal Guide" and "Every Tenant's Legal Guide." She can be reached at janet@inman.com.

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