Construction noise affecting my tenant

[kappakai]

What is the name of your state? North Carolina.

Hi all:

I own a condo unit in a complex in Charlotte. The complex is new, and has been under construction, with numerous phases being ready for habitation while others are constructed. I moved out and rented my unit out starting in October, 2005. The tenant had visited the condo in August, while there was construction going on. I had mentioned in phone conversations that new units were being built in what is essentially my back yard, but did not advise of unbearably loud noise, because I had not been subject to any.

My tenant emailed me November 4th, and basically said that the noise from construction was interfering with his ability to work out of his home office, which was in the 2nd bedroom of the unit. Construction is completely legal, with all the requisite permits, and between the hours of 7:30am and 5:00pm. He asked me for a rental reduction, saying that a substantial decrease in rent would justify his putting up with the noise, but I did not agree to one yet, instead opting to explore some other options. He said his other option was to move. He made it a point of saying that the noise was violating the implied "warranty of merchantability" (I'm sure he meant habitability, but he's an ex-attorney, so...). Anyway, he paid his rent by directly depositing it into an account I setup specifically for rent and the security deposit, as we had agreed. However, he shorted it by $150.

Couple of questions:

1. Does he have a case in saying that I must do something about the noise?

2. Him withholding rent is a big "nono" on his part, correct? There should be a bilateral agreement for that before he can reduce his rent payments.

3. If he ends up breaking lease, and leaving, what money, if any, should be returned to him? The rent he paid for November? Any part of the security deposit?


What would be the advisable next step? I have already sent him an e-mail saying that he needs to remit the balance of the rent by this Friday (Nov. 11th) otherwise I will start the eviction process. I've been nice with this guy, reducing my asking price, reducing the security deposit, and even letting him into the premises a few days early so he could get it cleaned up. And I feel that he's taking advantage of me. I basically want him out now, especially since he decided to unilaterally withhold rent. Please advise, and thanks much.

 

[kappakai]

bumpity bump.

yah, i bumped my own thread.

i think i got most of my bases covered here. would appreciate a kick to the head if i missed something, or a yes or no to confirm. thanky much.

 

[BelizeBreeze]

What is the name of your state? North Carolina.

Hi all:

I own a condo unit in a complex in Charlotte. The complex is new, and has been under construction, with numerous phases being ready for habitation while others are constructed. I moved out and rented my unit out starting in October, 2005. The tenant had visited the condo in August, while there was construction going on. I had mentioned in phone conversations that new units were being built in what is essentially my back yard, but did not advise of unbearably loud noise, because I had not been subject to any.

My tenant emailed me November 4th, and basically said that the noise from construction was interfering with his ability to work out of his home office, which was in the 2nd bedroom of the unit. Construction is completely legal, with all the requisite permits, and between the hours of 7:30am and 5:00pm. He asked me for a rental reduction, saying that a substantial decrease in rent would justify his putting up with the noise, but I did not agree to one yet, instead opting to explore some other options. He said his other option was to move. He made it a point of saying that the noise was violating the implied "warranty of merchantability" (I'm sure he meant habitability, but he's an ex-attorney, so...). Anyway, he paid his rent by directly depositing it into an account I setup specifically for rent and the security deposit, as we had agreed. However, he shorted it by $150.

Couple of questions:

1. Does he have a case in saying that I must do something about the noise?

You do not under any theory of law, have to 'do something' about the noise.

2. Him withholding rent is a big "nono" on his part, correct? There should be a bilateral agreement for that before he can reduce his rent payments.

Send him a certified (RRR) letter demanding payment and late fees or you will evict him and sue for recovery plus damages according to your state L/T laws.

3. If he ends up breaking lease, and leaving, what money, if any, should be returned to him? The rent he paid for November? Any part of the security deposit?

If he breaks the lease then you don't return anything to him until the court tells you to do so. And in your suit you may also be able to claim damages upto the end of the lease. For that advise contact a local real estate attorney who can read your lease and the relevant statutes.

What would be the advisable next step? I have already sent him an e-mail saying that he needs to remit the balance of the rent by this Friday (Nov. 11th) otherwise I will start the eviction process. I've been nice with this guy, reducing my asking price, reducing the security deposit, and even letting him into the premises a few days early so he could get it cleaned up. And I feel that he's taking advantage of me. I basically want him out now, especially since he decided to unilaterally withhold rent. Please advise, and thanks much.

quit sending e-mail and send your demand by certified (RRR) letter. Then if he does not remit, evict.

 

[kappakai]

Thanks for the last tip Belize. I was wondering about the whole e-mail thing. I'm actually in China, but I have family in the US who can do that for me. Another kinda related question. We transmitted the lease several times over e-mail (via scanner) and the signed lease that I have is a scanned copy of a signed lease. Is that legitimate?

Thanks again, very much appreciated.

 

[BelizeBreeze]

Thanks for the last tip Belize. I was wondering about the whole e-mail thing. I'm actually in China, but I have family in the US who can do that for me. Another kinda related question. We transmitted the lease several times over e-mail (via scanner) and the signed lease that I have is a scanned copy of a signed lease. Is that legitimate?

Thanks again, very much appreciated.

I would say yes, but in reality, it is a question for the court and your state statutes.

 

[liquid8or]

We are evicting a tenant (hearing tomorrow) where our evidence of service on the 3 Day was 2 pictures. 1 of the notice that is clearly readable in the pic and the next one backed off a few feet so we can see the address. It is backed up by an affidavit explaining the facts. Long story.

Anyway, the ruling by a few real estate attorneys out here is that we should be just fine with the "electronic evidence"

In addition, electronic document filings are becoming the norm, especially in federal court. While this is all subject to review in your area, I would bet $$ that your scan would be OK.

 

[kappakai]

sweet, good deal. i just want to make sure i have all my bases covered. it's not easy doing a lease, and then an eviction from half way across the world. it's funny, in this guy's emails to me, he always makes it a point of saying, i don't want to make it hard on you, cause you're continents away, but.... those nailguns are making it hard for me to make phone calls... blah blah.


aw, what the hey, here's his initial email to me. by the way, my lease states

7. Use of Premises. The demised premises shall be used and occupied by Lessee exclusively as a private single family residence, and neither the premises nor any part thereof shall be used at any time during the term of this lease by Lessee for the purpose of carrying on any business, profession, or trade of any kind, or for any purpose other than as a private single family residence. Lessee shall comply with all the sanitary laws, ordinances, rules, and orders of appropriate governmental authorities affecting the cleanliness, occupancy, and preservation of the demised premises, and the sidewalks connected thereto, during the term of this lease.

does his home office violate that term?


Kai-

I have a pretty major issue. As you know I own and run my own company and I use my home as my office for making and receiving phone calls and research and writing purposes. When I moved into your place, based on our discussions, I anticipated that your second bedroom was well suited to serve as my office. But on my first day of work, I was greeted at 7:30 in the morning by the sound of nail guns firing to build the framing of what I now know to be “building 1” of the construction project here at 3030 South. Although very annoying and disruptive to my daily regimen of telephone conversations and writing duties, I initially assumed that this work would be completely finished in a reasonable timeframe and life would move on without my needing to address the issue with you. As I have mentioned to you I am not one to cause unnecessary conflict without due cause. But as time has passed, not only have the nail guns been hard at work, but, unbelievably, construction has commenced on two additional buildings (named 8 and 9) that are no more than a few feet away from the back of your place. Please see and note the attached pictures and short movies for a visual and auditory understanding.



The unbearable noise of the construction cranes and other large vehicles which begins sharply at 7:30am and is present until darkness falls has made it impossible to live and work here. I am basically paying premium rent for comparable property in Charlotte while living smack in the middle of a construction zone where the decibel level is extraordinary on any scale, when I, and any reasonable person would, require and expect at least a somewhat quiet background for official duties. It is simply too loud and disruptive to concentrate, and people on the other end of a business call have actually noticed the background noise, which I cannot tolerate.



As you may know, there attaches a basic warranty of merchantability to the property in a lessor/lessee situation where the property must be deemed inhabitable for its intended purpose. And while at this point, I assume no malice on your part with regard to lack of notification of a new major construction project right at your back door, this issue must nevertheless be addressed immediately.



Basically, I can no longer continue to live and work here under the current arrangement because your place is impossibly suited for what we both intended as my uses and was so without my knowledge. And unfortunately, as per my lengthy conversation with Andy, the developer of the project, there is no end in sight until June of 2006 when the project is scheduled for completion. In fact, once the cranes and construction vehicles move out, concrete vehicles move in to lay foundations, and then a team of workers with their nail guns to frame both new buildings.



But on a positive note, honesty and integrity compel me to seek out a reasonable solution without just leaving you high and dry many Continents away. To be fair I can only think of a few suggestions. Either you substantially (albeit temporarily) reduce the rent until the end of construction in consideration for my involuntarily not being able to use the place for its intended daily purpose, at which point I will justify this major disruption, or I believe I must find alternate accommodations. I have researched and am fully confidant in my position with any agreement we may have in place, but would rather settle this matter as reasonable adults before escalation.



Kai, I think the interior was well maintained and looks nice; and the serenity of the evening is certainly welcome and cherished; I have enjoyed making the apartment mine and have respected it as ultimately yours, and furthermore you seem like a nice guy, but please know that I tried to wait out the initial disruption of nail guns without bothering you. But since the project has grown and will continue to do so, my patience has eroded and the major inconvenience simply isn't worth it for the price any longer. I dread the thought of moving again because I had planned to be here a while and may eventually have some productive work days once the construction is over, but I ultimately must if we cannot rectify the current issue.



Lastly, I did not like having to write this note because I really anticipated a long smooth ride, but please take a look at the pictures and movies and you'll see that I am not being unreasonable; I trust the same of you.



I do not have your cell phone number in China any longer (left it in PA), but feel free to call me in lieu of writing if you choose. I can most easily be reached at 570.4 and anticipate a civil and friendly discussion moving toward an amicable solution.



Thanks,



John T. , Jr., Esq.



P.S. The movie attachment was too big for you to receive so your email kicked it back to me. This is actually the third attempt to send this.