Gather Adequate Proof for Noisy Tenant's Eviction Proceeding
The most common tenant complaints deal with loud and disruptive neighbors. Your tenants may constantly be complaining of a neighbor's loud music, shouting and arguments, or barking dogs. And sooner or later, if asking the noisy tenant to stop does not work, you may have to start eviction proceedings. It's that, or risk the continuing anger of other tenants in your building.
Most leases contain a provision permitting termination where a tenant is committing or permitting a “nuisance.” By definition, a “nuisance” is something that interferes with someone's enjoyment of his own property. This includes a tenant's leasehold interest in an apartment.
However, evicting a noisy tenant can be difficult because it is tough to prove a noise nuisance. Another consideration is that when it is one tenant's word against another's, an owner should have his own corroboration so that he doesn't needlessly bring a case, says Niles Welikson of the Queens law firm of Horing, Welikson & Rosen. Here are some tips for gathering adequate proof of a noisy tenant's actions.
To spare themselves the hassle of bringing a frivolous nuisance case in court, owners should advise tenants to notify the superintendent or other staff member when they experience a noise problem. At this point, the superintendent or staff member can come and verify the problem.
If your staff member is called on several occasions and does not encounter any excessive noise, it may be that the complaining tenant is being overly sensitive and, therefore, you don't want to take legal action.
If possible, before deciding not to take action in this situation, the owner should have more than one staff member investigate to confirm there is no problem. This extra step will help the owner in court should the overly sensitive complaining tenant hold back rent or take legal action against the owner.
Use Decibel Meter and Video Recorder
With the proper tools, you will make it hard for a noisy tenant to deny wrongdoing, especially if you play a recording in court. However, merely playing a sound recording in court is not sufficient. You need to show that the recorder you used is a reliable representation of what occurred.
To accomplish this, use a decibel meter to measure the noise as it is captured because it is easy to manipulate a recorder to make a noise sound louder than it is. Certain microphones can pick up small noises and amplify them. Another recommendation is to use a video recorder to document the levels on the decibel meter.
You should talk to your lawyer before building an eviction case. A judge might discount the sound from a video recording as manipulating the sounds.
Retain Third-Party Witness
To help bolster your case, use third parties as witnesses. When video recording the decibel meter, have the complaining tenant bring in another person to witness the taping. The witness should be prepared to testify about how the tape was made. The witness should also be present in the apartment when the disturbance occurs. This way, the witness can swear that the sound on the tape accurately reflects what he or she heard in the apartment.
Use 'Tenant Complaint' Form to Encourage Testimony
The corroboration of other tenants in the building provides another source of evidence. In an eviction proceeding, the owner needs to demonstrate to the court that the noisy tenant's conduct is serious enough that a failure to evict will cause the owner or other building tenants to live under unacceptable and unreasonable conditions.
In making the case, sometimes an owner will try to evict a tenant for creating a nuisance, but the only person who comes to court to testify is the owner who does not live in the building. If this happens, the owner's testimony will not be accepted, because the owner cannot testify that other people in the building are annoyed. This is known as hearsay.
Usually, the owner has to bring as a witness at least one tenant who will testify that the nuisance-maker is interfering with his ability to enjoy his apartment. But winning an eviction proceeding is difficult when the complaining neighbor who pushes for an eviction does not want to get involved when the case goes to court. Many neighbors are reluctant to take a stand in court against a noisy tenant—even when they have been lobbying you or the super to get rid of that tenant.
One way to get these people to cooperate is to psychologically prepare them to testify from the day they first complain. You can do that by requiring tenants to register noise complaints on a written form that says they agree to be called as witnesses if the case goes to court.
Welikson advises clients to consider the “Four Ws” in their record keeping or in advising tenants to make notes of their complaints: who, what, where, and when. The complaint should include the type of noise, dates, and approximate times. When filling out the form, tenants should describe the disturbances or noises with sufficient and accurate detail. Make sure the form is filled out completely to ensure that the Four Ws are covered. See our Model Form: Use Noise Complaint Form to Get Witness's Cooperation.
Generally, people are usually most enraged and determined to challenge a noisy tenant when they complain to you or the super. Sensing this, you might want to consider using a tenant complaint form. Irate tenants write down the details of their complaint and agree to be a witness if there is a lawsuit.
Tenants are more likely to testify once they sign the form. The forms are valuable in court even if complaining tenants back off from testifying. Aside from police reports of disturbances, which serve as great evidence, the complaint form is another written record of the noise and disturbance created by the tenant you are trying to evict.
Best of all, the tenant complaint form discourages neighbors from lodging frivolous complaints. People will only sign the form when they are very upset and determined to follow through.
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