Annoying Neighbors Transcripts July 30, 1997 10 a.m. - 11 a.m. GUEST: MARK KLEIMAN, ATTORNEY/MEDIATOR The following are excerpts from the viewer call-in portion of the program. Noisy Neighbors Private Nuisance Lawsuits Neighbors and Their Pets Nuisances from a Neighbor's Property Neighbors and Zoning Laws MS. GRASSO: Welcome back for the second hour of Legal Cafe. For the next 60 minutes, we'll turn our attention to a subject that all of us can probably relate to, annoying neighbors. For people who live in the city, the problem could be a neighbor playing loud music late at night. For those who prefer the wide-open spaces of the country, it might be a rancher who lets his or her cattle roam onto your land. No matter what the situation, having a bad relationship with your neighbor can be a real drag, and a vexing legal problem. But is there anything you can do about it, or should you just pack up and find a new place to live? NOISY NEIGHBORS MS. GRASSO: I'm joined now by Mark Kleiman, an attorney and the founder of a community mediation company here in the New York area. -- let's start with a few examples. Give me the top three scenarios of the annoying neighbor. MR. KLEIMAN: Top three, I would say the barking dog is a major one. Children running through the yard, destroying the garden, and probably noise in any fashion. People clomping on the floor above neighbors -- MS. GRASSO: Now, the noise, which I think, you know, I think all of us at some point have had, you know, I used to have someone above me when I lived in an apartment playing piano all the time and, you know -- and there are -- I mean, that's one that really is dealable, isn't it, because there are always noise ordinances in every city and town. MR. KLEIMAN: Well, it's dealable. I think that it's dealable primarily and best through the personal communication between neighbors, rather than going the route of ordinances. But certainly it should be dealable in a matter of increasing -- MS. GRASSO: So what do you do? I mean, it's easier if you're friends with the neighbor and you say, you know, if they live next door, you can go to them and say, "You know, I'm trying to sleep. I work early, and could you like control it at a certain point in time." But suppose that it's a neighbor you don't know, someone like two floors above you. What do you do then? MR. KLEIMAN: Well, I think -- I think for everybody's benefit, you need to develop some kind -- some level of relationship, and one bit of advice I would give is not to let it go too long, because when it starts to build up in you, then all of a sudden it becomes personal, rather than just a problem, and the key in dealing with these problems is to deal with it directly and deal with it in a calmer way so that you can understand both their position and your own. MS. GRASSO: What about if it's someone a few buildings away? MR. KLEIMAN: A few buildings away? MS. GRASSO: Yeah. It's not -- in other words, it's not someone in your building, where you can go to the landlord and say, "You know, I'm having problems, can you talk to the tenant in 3-C," where it's someone three buildings away and you're hearing something at night or car starting up or car alarms going off, things like that. MR. KLEIMAN: Well, I think similarly, if there's something you can do personally, I would do it in a thoughtful, managed way. If there is somebody who is responsible for that building, in some fashion, maybe different from the person who's causing the problem, then certainly they can -- if you can put some pressure on them through the landlord or whoever's in charge, certainly as a last resort, calling the police or something is, you know, is a final option. MS. GRASSO: It's one you usually don't want to take. MR. KLEIMAN: Well, it's one that you have in your back pocket if you need it, and usually the degree that you don't use it, the illusion of its power becomes greater than its reality. MS. GRASSO: All right. So you could always say, "I'm going to have to call the police if you don't" -- you don't even like to do that, but -- MR. KLEIMAN: Well, if that's the final straw, then, sure, you can use that. PRIVATE NUISANCE LAWSUITS MS. GRASSO: Welcome back to Legal Cafe. I'm June Grasso. They say that good fences make good neighbors, but sometimes that fence might be too small to keep an annoying neighbor out of your life. The good news is a growing number of states now have laws that address the subject of private nuisances, and here are your legal grounds for a nuisance lawsuit. First, as the plaintiff, you have the burden of proving that your neighbor's doing something that seriously annoys you. The activity must also diminish your ability to use and enjoy your property. Some states also require you to prove that your neighbor's actions are unreasonable or unlawful. Before we go to the phones, I want to ask Mark a practical question about private nuisance lawsuits. What exactly -- what kind of evidence are the courts really looking for? Suppose it's a noise complaint that we were talking about before, which is probably one of the number one complaints. What kind of evidence would you have to bring? Do you have to have a decibel meter and show the judge that you've been -- you know, you've been leveling this out and you see that it's way above the limit for the city and state? MR. KLEIMAN: Well, I think noise disputes really points out the difficulties in bringing something like this to a court of law, which requires evidence, and it becomes one person's word against another, primarily. That's why -- that's why I would advocate people identifying the local community mediation center in their community and utilizing that as the first alternative. MS. GRASSO: Describe simply what mediation is. MR. KLEIMAN: Okay. It's a process in which disputants come to a center and they address the issue of their conflict with an impartial third party who's trained in the techniques of facilitating the dispute resolution. MS. GRASSO: So it's a third party trying to help them each come to a decision -- come to a decision together, rather than an arbitrator, who says, "You're right, you're wrong, and here's my decision." MR. KLEIMAN: Exactly. MS. GRASSO: So you try to work it out, but with a third party who can try to keep the tempers down and try to keep it on a level playing field. MR. KLEIMAN: Exactly. NEIGHBORS AND THEIR PETS MS. GRASSO: It's a great idea, actually. It really is, because you work it out yourselves, but there's someone there to watch over the process so no punches are thrown and -- Nothing too nasty is said. Let's go to our phone calls. Mark from New York. Good morning, Mark. Do you live in an apartment? Q Yes. Good morning. MS. GRASSO: Good morning. And how are your neighbors? Q Well, we have a particular problem with one neighbor. The building actually is an eight-unit condo, and I don't need to go into the history, but there's basically a woman who got a condo unit who is not paying maintenance fees or anything. We didn't know about the situation before we bought our apartment, but she has six dogs, and they bark at 2:00 and 4:00 in the morning, and we've only been in the apartment two weeks and been probably woken up about eight times already. So -- the woman's 90 years old. I know they've tried to evict her from the building, because -- more because of a landlord problem with her having the unit and not paying maintenance fees and owing back maintenance, but this is an entirely separate issue, so we really don't know how to approach it, because she's really not approachable. MS. GRASSO: She's 90 -- and, of course, I mean, six dogs -- I don't know how you stop them from barking. This seems like a tough situation. Barking, as you mentioned, one of the number one problems are going to be barking dogs, especially in big cities. Are there any answers for him? MR. KLEIMAN: Well, there might be some violation of the Department of Health ordinances. However, I would also consider -- you say it's a 90-year-old woman -- finding family members. There really may be a tremendous difficulty in dealing with this person one to one. You really may have a problem communicating, literally, with the person. The dogs may mean things to this woman beyond what you can imagine -- MS. GRASSO: And particularly an older woman -- MR. KLEIMAN: Correct. MS. GRASSO: -- I think, Mark, you'd probably have problems dealing -- you could complain to the city about that, but I doubt that you'd want to do that. So perhaps that's the best way to approach it, try to find someone else in her family or somebody else to talk to about it. MR. KLEIMAN: Yeah, and try to talk to them, try to get to them -- they may not know that she's not paying maintenance. She may not be really -- she may be confused and think she's paying and she's not paying. I mean, there are a lot of issues there, and the best thing I could recommend is to go to her family and try to sit down with them and discuss the matter. MS. GRASSO: All right, Mark. It's a tough, tough situation. Thanks for calling. MS. GRASSO: Welcome back to Legal Cafe as we discuss annoying neighbors and your legal rights. Now, one of the biggest complaints about neighbors is noise -- too much music, too many kids, a sensitive car alarm, or, as we heard, barking dogs. MS. GRASSO: Michelle from Illinois. Welcome to Legal Cafe, Michelle. How are you, and how are your neighbors? Q Oh, my one is fine. My other one's a little bit crabby. MS. GRASSO: What's the problem? Q Whenever she decides to go out in front of her house she does her lawn. Her sticks, her paper, anything that's on her lawn has to come on my lawn. MS. GRASSO: And have you spoken to her about it? Q She just ignores you when you go out there to talk to her. She goes, "Eh," or she'll just ignore you and look the other way. MS. GRASSO: So is it a lot of garbage that ends up on your lawn? Q Oh, yeah, a lot -- I think because I have three little kids, she wants to blame it on my kids, but even on the opposite side of her lawn, where my house isn't, she still throws that over here on my lawn. MS. GRASSO: So you have to end up picking up this garbage that she's thrown over? Q Yes. It's sticks and everything. She wants my lawn to look bad and her lawn to look nice. (Laughter.) MS. GRASSO: There's a little competition going on here. Mark, what do you -- now, Michelle, is it a huge problem, is there a lot of garbage, or it's just annoying? Q It's pretty much just annoying. MS. GRASSO: Annoying. And she's -- you know, everyone who's called has tried to approach -- has tried your approach, the reasonable approach, Mark. She's tried to talk to the neighbor, and it doesn't seem to be working, so what's the next step? MR. KLEIMAN: Well, the next step that I would -- if, in fact, you've really tried to discuss it and this is after seeing it, seeing them do it, coming right out and saying, "Listen, I saw you throw that on my lawn, you know, we both -- we both want nice lawns. Let's figure out a way of doing this more effectively," I would go down to the local community mediation center and they will send a letter to her to come in at a specific time, an evening, some time that's convenient, and to discuss it with a third party and to try to speak to that issue of the desire for a sense of community, which was mentioned by the people with the shy neighbor. MS. GRASSO: And perhaps just by sending that, it might send the message to her that Michelle's serious -- MR. KLEIMAN: Serious, oh, absolutely. MS. GRASSO: -- that she wants -- it's not just a question -- and also because she has children wandering around, so she doesn't want sticks and things in her yard, because her kids can get hurt or -- my daughter does use them for different purposes. MR. KLEIMAN: Sure, sure. MS. GRASSO: So, okay. MR. KLEIMAN: But I think also she may not know things that the children might have done that the other person is sort of holding onto, and maybe her action is a response to that. I mean, often when you get into mediation, a lot of stuff comes out and a skilled mediator can also bring out both parties' desire to live peaceably together, to have nice lawns -- obviously, she's taking stuff off the lawn means that she wants a nice lawn, also. MS. GRASSO: Michelle, are you willing to try mediation? Q Yes, I am. MS. GRASSO: Okay. So the first thing to do, you know, is to look in the Yellow Pages, I guess, for mediation or where else would you call? MR. KLEIMAN: Or the white pages, or I would -- I think you'd find it there. There is a national organization, the National Association for Community Mediation, which has a directory of all of them in the country. MS. GRASSO: And I'm sure if they call -- you know, call your county office or your city hall, they'd be able to tell you where that mediation service is, any information center like that if you can't find it in the phone book, but you might actually find it in the phone book. Okay, good luck, Michelle, with your lawn. NUISANCES FROM A NEIGHBOR'S PROPERTY MS. GRASSO: Welcome back to Legal Cafe. I'm June Grasso along with my guest attorney and mediator Mark Kleiman. We've been getting a lot of e-mail at the Legal Cafe website, and one of the most popular subjects is annoying neighbors, so let's answer an e-mail question, and it's a pretty common one. Edward from New Jersey asks, "What should I do if I have a tree branch that hangs over onto my neighbor's property?" Now, a lot of times the problems with trees are a big problem with neighbors in the suburbs, and if your tree, if the trunk is on your property, every state accepts that. Now, the branches hanging over into your neighbor's yard, the neighbor wants you to remove it, and you probably don't want to remove it, but do you have to? MR. KLEIMAN: I think that the neighbors could insist. I personally have a -- there's a fig tree next door, and because of the way the sun is, several branches come out onto our back yard. I have absolutely no intention of having them remove it, because the figs are great in the fall -- but for some people, if it's near a window, if it's really producing some kind of a safety issue or -- then I think you certainly have a right to have it removed. I would, again, take it up with my neighbor in a way that, you know, that doesn't totally upset the balance of the tree, maybe even sharing in the cost, whatever, you know -- in other words, be neighborly and, you know, foster the kind of community that you want to live in. MS. GRASSO: And, of course, there are different ordinances in different states. MR. KLEIMAN: Absolutely. MS. GRASSO: You have to look into what your state ordinance is, but there are a lot of things you'd be surprised dealing with trees, so you should also check on that, but it seems like the basic thing would be that you would have to get -- you would have to remove the branches if it's interfering with your neighbor's enjoyment of his property. He has a right to enjoy his property -- he or she -- and so you'll probably have to remove the branches on that tree. Our next caller is Leah from Louisiana. Good morning, Leah. Q Hi. MS. GRASSO: Hi. Do you have a question or do you want to talk about your annoying neighbor? Q Well, usually I don't have any problems getting along with my neighbors. I was raised that, you know, you get along with your neighbors and you help one another. MS. GRASSO: Right. Q But I did have a lady that lived next door to us that had a spotlight that when I walk out on my back patio, it's like -- ah! You know? MS. GRASSO: It shines on you, actually. Q Really. And I guess it worries me to a certain degree, because, you know, what if I was to hear something outside and have to go outside and I'm looking and it's blinding me, you know what I'm saying? MS. GRASSO: And have you talked to her about, perhaps, you know, making it less watts, the spotlight, than it is now? Q Well, it's like talking to the tree out back. (Laughter.) But we put up a privacy fence, a wooden privacy fence, and now she has raised the light up a little higher. (Laughter.) And I can go on my back patio, the light still shines in our face at night. I can go on my front porch, and it also shines in our eyes. MS. GRASSO: And what about -- does it bother your sleeping? I mean, does it shine in your window, your bedroom window, too? Q In my bay window here, you can, you know, like through my miniblinds, like little holes. MS. GRASSO: Well, Leah, do you think it's just spite on her part because you put up the fence and now her light's up higher? Q Well, the light was shining over here before we put up the fence, you see, and then when we put the fence up, the light has gone, like, a little higher. MS. GRASSO: Well, it sounds like a case for mediation, but let me ask Mark if this is the kind of case. The light's on her property, but it's interfering with her enjoyment of, you know, this lady's enjoyment of her property. MR. KLEIMAN: Sure. I would like to know whether or not she actually asked her neighbor why she needs the light. MS. GRASSO: Well, Leah, have you asked her that? Q No. Huh-unh. MR. KLEIMAN: Because there may be -- maybe there's a fear of, I don't know, maybe there've been burglaries in the area, maybe there's some kind of fear in some manner. I think you've got to integrate, you know, obviously, in mediation, try to integrate the needs of both parties. Maybe there's something where if you put up a small light on your property, you could address the concern of your neighbor, but try to understand why it is the light is there. MS. GRASSO: Leah, give it one more chance talking to her, and if that doesn't work, look up a local mediation service that you can go to where you both can go and talk and talk it out and see if you can work out something. Q We even had a deputy come over here and we even asked if, you know, there was something that we could do, and he told us no, you know. MS. GRASSO: Well, you know, deputies might not think about mediation. It's something that, you know, people in law enforcement don't always think about. You know, you think about lawsuits and filing complaints and -- MR. KLEIMAN: Putting them in jail. MS. GRASSO: -- violations, but you don't think about trying to work it out first through somebody else. And it helps sometimes because where she may not be willing to tell you, a third party may be able to bring it out of her why she wants this, and perhaps you can work it out, because it does sound like an annoying situation at night. So thanks so much for calling, though, Leah. Good luck. ZONING LAWS MS. GRASSO: Our next caller is Sherry from Los Angeles. Good morning, Sherry. Q Hi, how are you? MS. GRASSO: Okay. How are you and how are your neighbors? Q Well, my neighbors are fine, except for one of them. We have -- one of the houses on our block is essentially owned by an absentee landlord who has rented out his home. One of the renters remains the same, but he essentially is subletting to a continually changing group of people, and multiple people, and this causes a situation where there are lots of parties, they're running a business out of the home, they're using the house for filming, there's lots of cars and lots of traffic, and the way the people on our block have dealt with it is that we've sent a letter to the owner and everyone has signed it, we've contacted our local homeowner's association, who have in turn sent a letter, and we've contacted our city councilmen, and all of this has been to no avail. The owner who -- at this point, we don't even know where he is -- ignores everything. MS. GRASSO: Well, are you -- is that area zoned for businesses? Q No. MS. GRASSO: So if it's not zoned for businesses, Mark, then first of all there's a zoning violation there, if they're operating a business out of a home. MR. KLEIMAN: Right. Right. It's a matter of getting the local agency, law enforcement, to follow that up. I mean, the problem with most of these issues is they are such a low priority in the whole scheme of government enforcement that it becomes very difficult to get anything substantial happening. I know in Los Angeles, not to be a continuing -- have a record here, but -- MS. GRASSO: You're advocating mediation -- MR. KLEIMAN: Yeah. Yeah. MS. GRASSO: I think Sherry's problem, too, is that it's continually different people in and out of the house all the time -- MR. KLEIMAN: Right. MS. GRASSO: -- so it's not like you're dealing with one neighbor and if you mediate with this neighbor -- MR. KLEIMAN: Yes. MS. GRASSO: -- it'll be fine, you can, you know, and you can -- MR. KLEIMAN: Yeah. MS. GRASSO: -- work it all out, because she'd be mediating every couple of months, it sounds like. MR. KLEIMAN: I think there's one continuing neighbor, and then there's a sublet that exists in this situation, but it's a real problem. I think they have to be very specific as to the kinds of -- the kinds of violations, and be very insistent with the particular agency whose job it is to enforce it. I think that, you know, the local political person is all well and good, but they would tend to try to talk it out, also. MS. GRASSO: So would it be the zoning board that deals with the -- for example, if there's a business operating there, that would not be allowed, because it's not zoned for commercial, so who would she go to for that? MR. KLEIMAN: I would -- I would go to -- I would start with the zoning board. I would check with whatever housing-type court there is in order to determine where violations are enforced. MS. GRASSO: And are there ever limits on the number of people who could live in a home? Is there anything like that in a private home? MR. KLEIMAN: Often there are limits of the numbers of families, you know, in this day and age, housing is a problem in some areas, and often private homes have, quote, illegal sublets -- MS. GRASSO: Sublets going on -- MR. KLEIMAN: Right. MS. GRASSO: -- and it may be -- if this person is actually subletting -- MR. KLEIMAN: Right. MS. GRASSO: -- he may be renting from the owner and subletting to other people. MR. KLEIMAN: Exactly. MS. GRASSO: So she's got to do research on, at the library, perhaps. So, Sherry, the zoning board is one thing. They can certainly lead you to the right agency about the commercial use of the residential area, because that means that there are probably more cars out there and all different kinds of things that go along with it, which is why residential areas aren't zoned for commercial purposes. And you could also try the library to see if there are any restrictions on subletting or how many families can live in these single-family homes in your area. Thanks so much for calling, Sherry. Good luck. Mark Kleiman, I want to thank you very much for being here today -- MR. KLEIMAN: It was a pleasure. MS. GRASSO: -- and helping us sort out these disputes among neighbors. It's closing time here at the Legal Cafe. We're here every weekday morning at 9:00 a.m. Eastern Time, looking at a different area of the law.