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Subject: Screaming sex
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Author Messages
JudyL6


Posts:0


11/12/2017 9:54 AM  
One of the owners in our building is complaining about frequent very loud sex, in including loud voices and bed moving, coming from above in the middle of the night. This is waking up the whole household below, and the noisy bedroom is directly over the bedroom of two young children. So these little children wake up at 2:00 am to people screaming and moaning above them, plus furniture hitting the wall. Scary for them. Other residents in the building are also bothered by these late night noises. The owner below has politely (she says) told the upstairs tenant (she's a renter) about how disruptive this is, but the tenant above basically responds, "Too Bad". We have directed the owner below to deal directly with the owner of the offending tenant above. That owner has had several discussions, some in writing, with her tenant, without success. Since she hasn't been able to solve this problem, should the HOA fine the owner above for her tenant's violations of the noise and quiet time regulations? She would then be able to bill the tenant for this - maybe an incentive for tenant to tone it down? How do we reply to the owner who keeps complaining to the HOA?

I'm asking your opinion as I am a Board mention, and I'm not sure if this particular kind of noise is something that we can regulate. Is there really anything that the owner or the HOA could do about this?
AugustinD


Posts:603


11/12/2017 10:04 AM  
Lots of case law exists on noise in HOAs and apartments and what rights the Board and management have to stop it when it is over the top. I think your Board is in its rights to collect documentation of the noise, issue notice violations to residents and owners alike, and fine as needed after the accused have a chance to respond and have a hearing. I would be careful to keep this confidential, so the accused do not come back with an invasion of privacy claim.

Here's some commentary on this for California HOAs:
https://www.davis-stirling.com/Main-Index/Nuisance-Noise
https://www.davis-stirling.com/Main-Index/Nuisance-Defined
PaininyourA
(South Carolina)

Posts:119


11/12/2017 10:07 AM  
please post a link to the audio in question so we can better advise
MelissaP1
(Alabama)

Posts:6788


11/12/2017 10:08 AM  
Just have louder sex...

Former HOA President
PaininyourA
(South Carolina)

Posts:119


11/12/2017 10:09 AM  
? how would one know w/o a basis of comparison ?
JohnC46
(South Carolina)

Posts:7010


11/12/2017 10:11 AM  
While I personally love a screamer...this is none of the BOD's business. It is a neighbor to neighbor dispute. Have the complainer call the police. STAY OUT OF IT.
DouglasM6
(Arizona)

Posts:438


11/12/2017 11:40 AM  
Posted By JohnC46 on 11/12/2017 10:11 AM
While I personally love a screamer...this is none of the BOD's business. It is a neighbor to neighbor dispute. Have the complainer call the police. STAY OUT OF IT.




This is actually the best advice. However, I would notify the loud sexers that they are being heard by children. That seems to help sometimes. Other than that, steer clear.
JohnC46
(South Carolina)

Posts:7010


11/12/2017 12:07 PM  
Posted By DouglasM6 on 11/12/2017 11:40 AM
Posted By JohnC46 on 11/12/2017 10:11 AM
While I personally love a screamer...this is none of the BOD's business. It is a neighbor to neighbor dispute. Have the complainer call the police. STAY OUT OF IT.




This is actually the best advice. However, I would notify the loud sexers that they are being heard by children. That seems to help sometimes. Other than that, steer clear.




The downstairs neighbor could write a polite and anonymous note. The BOD should do nothing.
KerryL1
(California)

Posts:4381


11/12/2017 12:09 PM  
Our condo building, too, has noise nuisance prohibitions at all times and especially after 10pm. Doesn't matter WHAT the source of the noise. Here it's usually loud partiers or barking dogs. So, Im firmly with Augie on this.

And, because there are others who complain, it's not a simple neighbor-neighbor issue. Judy wrote: "Other residents in the building are also bothered by these late night noises. "

So, Judy and especially since the bothered person has tired to handle this disturbance, do your warning letter, citing the passages in your CC&Rs or Rules & Regs and then call to hearing to the Owner, or whatever your docs permit so that the complainers can once again enjoy peaceful use of the premises.
SamE2
(New Jersey)

Posts:7


11/12/2017 12:17 PM  
If the Board ignores the issue I would expect the owner to sue the Board. The Board has a responsibility to make sure the rules are followed by everyone. They may not have to police the place but the have to respond to issues owners bring to them, they can't stick their head in the sand.
AugustinD


Posts:603


11/12/2017 12:47 PM  
I concur with KerryL1 and SamE1 that this is a covenants issue. The Board and HOA should follow the HOA's governing documents. As long as the covenants prohibit either a certain amount of noise or nuisances, then the Board should investigate; issue a notice of violation; have a hearing as requested; and so on.
PaininyourA
(South Carolina)

Posts:119


11/12/2017 12:47 PM  
https://brotherpeacemaker.files.wordpress.com/2012/04/madea-gun.jpg
MelissaP1
(Alabama)

Posts:6788


11/12/2017 12:53 PM  
You don't sue a board, you sue the entire HOA. Which is you and your neighbors. Board members have insurance to protect them from such lawsuits.

This is a neighbor thing. Noise violations still should be reported to the police by the HOA. Otherwise the HOA can only punish the only way it has to do so.

Former HOA President
KerryL1
(California)

Posts:4381


11/12/2017 2:43 PM  
In our condo HOA, noise nuisances are punished with fines. As fines a can double upon each incident, fines work very well. Our board DOES follow our covenants.

SamE2
(New Jersey)

Posts:7


11/12/2017 3:33 PM  
Melissa I wish you would have schooled some of our unit owners. I along with all the other Board members and the Association was sued by a few unhappy owners. Maybe they did it wrong but we were all named in the lawsuit. I agree it should be reported to police but think the HOA has to follow their documents and work to resolve the issue.
TimB4
(Virginia)

Posts:14860


11/12/2017 3:36 PM  
Sam and Kerry,

How would you word such a letter (so the recipient would actually take it seriously, not burst out laughing and not be offended that the Association is now poking into the bedroom)?

Keep in mind that any such letter may make it to the media.
MelissaP1
(Alabama)

Posts:6788


11/12/2017 3:38 PM  
A HOA board should always be covered by insurance. It protects you as an individual for decisions made as a board. That is one of the main purposes of the insurance the HOA carries. One may name the board members in a lawsuit. However, once that goes to court the judge will toss it out. Suing your HOA is suing yourself and your neighbors. Want to sue then go for it. Just realize that is always the consequence whether right or wrong.

As for the loud noise, your HOA should have a fining schedule set up for such things. Otherwise, the HOA just calls the law to sort things out.

Former HOA President
AugustinD


Posts:603


11/12/2017 3:56 PM  
Posted By MelissaP1 on 11/12/2017 3:38 PM
AOne may name the board members in a lawsuit. However, once that goes to court the judge will toss it out.


Maybe where you live, but not where I am. Suppose both the HOA as a corporation and directors are named as defendants in a certain lawsuit. First, if the HOA's insurance company provides an attorney under its indemnification clause, the attorney is going to spend as little time as possible on niggling little details like a poor volunteer director is having her or his name dragged through the mud or has to disclose on a loan application that she or he has been a defendant for the past year in a lawsuit. Second, the judge needs defendants to give a legal reason to dismiss them from a suit while the main part of the suit remains intact. Coming up with a reason for dismissing individual directors as defendants is a lot of billable hours. Money-wise, it's cheaper to just focus on getting the suit against the HOA itself dismissed. Been there. Worse, I think some insurance companies are fine letting a lawsuit die for 'lack of prosecution,' particularly when the plaintiff is pro se. This does not really clear the names of the defendants in my book. But it is way cheaper.
KerryL1
(California)

Posts:4381


11/12/2017 7:28 PM  
To try to stay with Judy's OP: IF her HOA's documents have noise nuisance prohibitions, and all condo buildings I know about in my 'hood, do, then the board must enforce. Yes, Judy's HOA must follow due process in CA re: all Common Interest Developments.

The letter would be like all other after hours noise nuisance letters--generally parties on balconies in my HOA. There is no need to describe the details of the type of noise: "Loud voices and furniture noises, often at xxAm, as corroborated by our Association's staff need to stop per our CC&R xxx, which states: "..." If your tenant refuses to cure this violation, XXX HOA will invite you to a hearing where, per our fine schedule, you may be assessed a fine of $100 for the first violation."

I am often surprised that some experienced posters here agree governing documents should be enforced, but constantly draw some sort of line at corroborated noise nuisances. Surely the differences between multistory, attached living and that which features large expanses between detached homes is obvious.



AugustinD


Posts:603


11/12/2017 8:45 PM  
Posted By KerryL1 on 11/12/2017 7:28 PM
There is no need to describe the details of the type of noise: "Loud voices and furniture noises, often at xxAm, as corroborated by our Association's staff need to stop per our CC&R xxx, which states: "..." If your tenant refuses to cure this violation, XXX HOA will invite you to a hearing where, per our fine schedule, you may be assessed a fine of $100 for the first violation."


Kerry, your wording is superb.

(I admit it is hard not to take the low road and make jokes about this. Without question, if these were my neighbors, I would be some flavor of apoplectic and, after trying the polite route, want action from the HOA.)
TimB4
(Virginia)

Posts:14860


11/13/2017 3:15 AM  
I agree, Kerrys wording is good.
DaveD3
(Michigan)

Posts:770


11/13/2017 4:54 PM  
Posted By MelissaP1 on 11/12/2017 12:53 PM
You don't sue a board, you sue the entire HOA. Which is you and your neighbors. Board members have insurance to protect them from such lawsuits.

This is a neighbor thing. Noise violations still should be reported to the police by the HOA. Otherwise the HOA can only punish the only way it has to do so.




The board should NEVER be in a position where they're the ones contacting police, unless it's necessary to uphold a court injunction that results from the due process of enforcing the rules.

If loud sex violates a rule of the HOA, the proper steps must be taken for notification and escalation.

If it doesn't violate a HOA rule, then the board has NO place in the matter.
KerryL1
(California)

Posts:4381


11/13/2017 5:22 PM  
To Dave's point: if there are loud parroters on a balcony here, neighbors complain, the security officer contacts the violators to quiet down, go inside and close the door, and the violators refuse, these who complain are advised to contact the police. This does happen although rarely. The staff do not call the police.

They will, however, write a report and the unit owner will receive a "courtesy" letter saying that further violations of this type will result in an immediate call to hearing for the Owner.
KerryL1
(California)

Posts:4381


11/13/2017 5:22 PM  
To Dave's point: if there are loud parroters on a balcony here, neighbors complain, the security officer contacts the violators to quiet down, go inside and close the door, and the violators refuse, these who complain are advised to contact the police. This does happen although rarely. The staff do not call the police.

They will, however, write a report and the unit owner will receive a "courtesy" letter saying that further violations of this type will result in an immediate call to hearing for the Owner.
TimB4
(Virginia)

Posts:14860


11/13/2017 7:59 PM  
Judy, the original poster, has left the building
PaininyourA
(South Carolina)

Posts:119


11/14/2017 10:13 AM  
TimB4,

Thank you.

I do get carried away.

But never actually in a jacket.

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