Question: We purchased a condominium in a small complex and in a great location for an incredibly low price because the previous owners had to move suddenly. Shortly after we moved in we started hearing strange outbursts of swearing and barking-like sounds coming from another unit close by.
This continued intermittently day and night for weeks. Not certain what to do, we attended the annual association meeting to share and discuss the issue with the board. To our astonishment, there was a gentleman who repeatedly swore loudly and even spit during the meeting. He made the same barking-like sounds we heard for weeks.
Although he was extremely disruptive, no one showed concern, they just ignored him. We learned the man has Tourette’s syndrome, a neurological disorder that causes involuntary movements and outbursts. We are very sympathetic to his condition, but it is causing us grief and sleepless nights.
Apparently other owners have complained but the board says there is nothing they can do because he has a disability. We now know why our unit was substantially underpriced and why our building has such a high turnover. Other owners are planning to move as well — they tell us they can’t take it anymore.
Can we sue the seller for failing to disclose this? Can we sue the board for not doing something about this problem? How do we resolve something like this without looking heartless?
Answer: Your situation is a reminder that purchasing a home is a large investment and prior to making an offer much can be learned from attending board meetings or walking the grounds and talking to the residents.
But given your sleepless nights and the fact that other owners have already complained to the board, disclosure of the neighbor’s condition should have been made by the sellers well prior to escrow.
In addition to specific information that a seller is required to disclose to a potential buyer, there is a general requirement to disclose any “material facts” related to the sale. The history of complaints definitely appears to be “material” to this sale.
Review your escrow documents and look for all disclosures the seller made. If your property is worth less than you expected as a result of the seller’s failure to disclose this information, or you are unable to fully enjoy your property because of this problem, then you may have recourse against your seller.
It is unlikely you could take legal action against your homeowners association as it was not a party to your purchase contract and had no duty to disclose any such information.
But a lawsuit is not the answer to every problem. Litigation often breeds more problems than it solves and should be avoided whenever possible.
Also, do not expect your homeowners association to intervene given that Tourette’s syndrome has been recognized by Justice Department as a disability covered by the Americans with Disabilities Act.
If your neighbor can demonstrate that his disability substantially limits one or more of his life activities, then he will be statutorily entitled to reasonable accommodations and cannot be discriminated against without severe penalties.
Such a finding means the board should exercise its discretion and refuse to enforce any noise restrictions or generally accepted meeting etiquette. If you plan to stay in your unit, you must find some way to learn to live with your neighbor’s condition.
You and other affected owners may want to consider paying for reinforced windows or other sound-dampening measures in his or your own units. If that is not viable, consider relocating or making an offer to buy out your neighbor — both options may be cheaper than risking a costly, often protracted lawsuit with no guarantee of success.
Don’t forget, though, that your disabled neighbor has as much right to enjoy his home and association common facilities as all other owners.
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Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.
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