I have heard of “breach of quiet enjoyment” as applying to landlord-tenant issues. Does this apply to community associations as well, and can our association be held liable for “breach of quiet enjoyment” which is being caused by a neighboring business, such as a loud outdoor bar next to a condominium?
ANSWERS:
No. the only liability, if there is any, would be on the business for a violation of any applicable municipal noise ordinance.
Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
717.846.2246 phone
717.846.2248 fax
saustin@austinlawllc.com
Sounds like a difficult case. If the neighboring bar is operating legally and within applicable ordinances, then there is likely no claim for too much noise.
By way of example, I represented a condominium association located above a Trader Joe’s grocery store. The Trader Joe’s was extremely busy and at about 3am to 4am delivery trucks would idle by the loading dock and cause noise to the residents above the ground level. My research indicated that there was no claim and that the issues were obvious and apparent to any new buyer.
Generally, “quiet enjoyment” relates to a tenant’s right of use to the exclusion of third parties or interruptions from the owner. The term “quiet” in this context is not read literally but rather relates to the tenants use of the property without interruption of the actual space by any third party.
David G. Hellmuth
Attorney at Law
Direct dial: (952) 746-2107
dhellmuth@hjlawfirm.com
8050 West 78th Street
Edina, MN 55439
Phn: (952) 941-4005
Fax: (952) 941-2337
The right of “quiet enjoyment” really has nothing to do with noise. It is the right of a tenant to have legal possession of his or her premises without someone challenging their legal right to use it. Sometimes it is extended to a severe impairment that “constructively evicts” the tenant, but that type of impairment is usually addressed by claiming that a landlord has breached its “warranty of habitability.”
A condominium unit owner has a theoretical right of quiet enjoyment of its rights as an owner in the association, but only against other persons claiming ownership of the Unit, not because the Association has any obligation to control noise from an adjoining business. In that regard the Association is not the owner’s landlord and there is no “warranty of habitability” available to the unit owner. The unit owner may have a claim of “nuisance” against the adjoining business in his own right, but the Association usually has no liability to the owner for the actions of a non-member unless the Association is colluding with the non-owner to distress the unit owner. Of course, the Association has the discretionary ability to complain to the adjoining business on the owner’s behalf, but that does not shift the legal responsibility for abating the problem to the Association.
Kenneth Jacobs
Smith, Buss & Jacobs LLP
733 Yonkers Avenue
Yonkers, NY 10704
914-476-0600 X4102
60 East 42nd Street
46th floor
New York, NY 10165
212-688-2400 X4102
The covenant of quiet enjoyment is strictly a landlord/tenant matter
and does not apply to associations. The association documents may have
covenants restricting owners and other occupants from creating a nuisance.
The situation described is more an issue of disturbing the peace and the
municipality may have ordinances in that regard enforced by the police or
the code official.
Kenneth D. Roth, Esq.
Marchetti Law, P.C.
900 N.Kings Highway, Suite 306
Cherry Hill, NJ 08034
kroth@marchettilawfirm.com
Tel: 856-824-1001
856-414-1800
Fax:267-219-4838
An owner can be held liable to other owners and the association for breach of the “quiet enjoyment” covenant and an association can be held liable under certain circumstances as well for the failure to pursue enforcement of such violation.
Yet, this is a difficult topic upon which to provide a definitive answer because that which disturbs one particular owner may not disturb a majority of the board. Under such circumstances the board should have a justified basis not to enforce, although an owner would nevertheless have the right to enforce.
Patrick F. O’Dea, Esq.
Nelson Mullins Riley & Scarborough, LLP
3751 Robert Grissom Parkway, Suite 300
Myrtle Beach, SC 29577-6412
Phone: (843) 946-5631
patrick.odea@nelsonmullins.com
www.nelsonmullins.com
The covenant of quiet enjoyment is an implied covenant in a landlord/tenant setting. The proper cause of action when a neighbor is constantly committing annoying acts interfering with the right to enjoy one’s home, is nuisance.
Griffin Alexander, P.C.
Robert C. Griffin, Esq.
415 Route 10
2nd Floor
Randolph NJ 07869-2100
(973) 366-1188
rgriffin@lawgapc.com
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