Issues with Tenant Above a Unit I Own

9 Replies

Hello Everyone,

So I've run into my first big problem with landlording. I own a condo but do not own the condo above it. My tenant has been there for approximately 2 months, and the upstairs tenants have been increasing disruptive and hostile to my tenant.

It started with loud noise and has escalated into throwing eggs at cars, bottle onto their porch, and direct confrontation. Since our CC&R guarantees the "quiet enjoyment" of our community, I've approached the property management company that runs the HOA about sending a notice. The response I got from them was "It isn't our job to enforce the rules, we can't do anything to make people follow them." I explained to them that they should be inspecting the property, sending out violation letters, and when the violations aren't paid, foreclosing on units. They also refused to give me the phone number of the owner for the unit so I could have a little landlord to landlord chat. The lady at the property management company seems clueless at best. Additionally, all the windows in the upstairs unit have been broken by their tenant. Again, they said there was nothing they could do.

Anyhow, I need to determine the best short term course of action to assist my tenant in the enjoyment of his property and wanted to get some suggestions on the most effective course of action.

Action #1) I already have the owner's address (out of state owner) that I'm going to send a letter to in order to notify them of the windows and inform them they will need to compensate me for the water damage which was done to the lower unit the last big rain we had.

Action #2) Have my tenant call the police when any nefarious activities or excessive noise takes place to build up a record. Once I feel a sufficient case is built, take either the HOA or Property Management Company or the Owner to small claims court to sue for either break of the CC&R Agreement or move my tenant out and sue them for the balance of the rent, since he is unable to enjoy the property quietly.

Action #3) Call the county and explain my concerns about the broken windows and doors. Attempt to get the property condemned, thus making it uninhabitable and force the current tenants to move out.

Action #4) My tenant has also reported some suspicious activity with the two children that live there. Its likely that they are being abused as a lot of the nuisance noise is them running around and/or crying/yelling. I've never had any dealings with Child Protective Services, but this sounds like something they may handle.

Action #5) All of the above.

Any advice or a previous experience on how to deal with an issue like this would be appreciated!

-Christopher

No legal advice given.

You and your tenant DO NOT need to make contact with this other tenant. Your tenant can file an incident report with the police department. This will create a paper trail and precedent if the other tenant tries to do something again.

Just based on the things you have said your tenant should have called the police long ago and made a report.

You need to stay out of this. The police will not want either one of you getting into a confrontation or talking with this person as that can escalate things. It's easy for this other tenant to tell you off or your tenant and start something. If they do that with Police they go to jail.  

I agree with what @Joel Owens said. 

I would also track down the owner of the unit and make sure he/she is apprised of the situation. 

Since you and the other owner are both members of the HOA, you should send written notice to the HOA of the violations occurring as they relate to the HOA CC&R and other rules that the tenants must abide by. It doesn't make sense to me that a property management company can "run the HOA". Property owners typically elect the HOA officers and the HOA officers may enter into a property management agreement, but are ultimately responsible to make sure the HOA CC&R are properly enforced. Make contact with the HOA officers as soon as possible and apprise them of the situation.

You may need to write a demand letter to get some action from the HOA or the other property owner. Focus on the results you need for the protection of your property and for the people who reside there. Don't try to tell an incompetent property manager how to do their job, as it will be futile. You also may want to make it a point to learn who in the HOA has the most clout and get on their good side. Start attending HOA meetings to learn the inner workings and to network with other property owners. You would benefit by having an ally or two to go to bat for you.

Lastly, keep your tenant informed of the progress you are making. Visit the property often to confirm what is going one. Offer your tenant some compensation for their inconvenience. If your tenant wants out of their lease because of the intolerable situation, let them do so without penalty.

I am not one to quickly advise people to talk to a lawyer, but I think you need to in this case. You'll be looking at suing the HOA and the owner of the unit above, and if the owner has a manager, the manager, too.

You'll have to have incurred out-of-pocket losses, probably to sue over.  But, starting a paper trail where you have made them all aware of the problem, prior to actually losing your tenant over it, would probably be helpful.

It might also be in your favor to have police reports.  But, I'd be careful of any repercussion to your tenant.  Perhaps you could call the police yourself and tell them what's been going on?

But, really, I think this is one case where having a lawyer's advice and letterhead will be worth the money.

EDIT: On second thought...Just notifying the owner of the unit above may work, though. I owned a condo in Davis, CA where there were rentals in my four-plex (condo complex of 4-plex buildings). One was causing a lot of problems with noise and not picking up after their very large dog. I couldn't get any help. I finally looked up the owner, as the manager nor HOA were responding. The owner kicked them out quickly, and discovered a lot of damage by a dog that was not allowed.

So, you might get lucky if you contact the owner, and the owner is unaware and cares.  If not, then the lawyer.

@Christopher Brainard

 I wouldn't suggest the lawyer route. I don't think the situation has escalated to that point, you'll probably spend money on legal advice without getting any clear value for it, and small claims court is probably best if you go that route in which case you don't need a lawyer.

Have you thought of offering to buy the upstairs unit from the out of state seller? They might be the motivated seller that we're always trying to find. You might have an opportunity in front of you. Maybe you can offer to manage the unit for them if the seller doesn't want to sell.

You need to establish communication with the owner of that unit. Try sending a letter. Start attending the HOA board meetings and bring up your concerns. Contact neighbors and other owners and maybe you'll get lucky and get a phone number or at least someone who'll pass on your number.

Basically, try to work something out through the owner or the HOA board to get this resolved. By all means, if there are legitimate child welfare concerns call the Department of Child Services (or better yet, have your tenant call). Good luck.

I think filing police complaints about illegal activity would be a good move.  Threats or damaging of property need to be documented even if you can't pin them on someone at this point. 

Contacting the owner may also be helpful.

I would not however get child protective services involved unless you have some evidence of abuse. A lot of the nuisance noise of them running around and/or crying/yelling  is not evidence of abuse. Kids cry and yell, it isn't pleasant when they do it over head but it is not necessarily abuse.  If there is evidence the child are being routinely being left unsupervised and are too young for that in your state, if you hear the parent hitting the children, if the children are not being fed (e.g. kids picking up food from other sources like the trash) these are reasons to call.  These complaints can be anonymous but   should be specific.  In most states they do not investigate every complaint.  Obviously seeing abuse would also be a reason to call police immediately or if you see or hear someone actually being abused overhead call the police when it happens.

You should definitely instruct your tenant to call the police if the disturbance warrants it, each and every time it happens, although don't expect the police to actually do anything other than file a report. Contacting the owner is the best bet. I had a similar issue, not an HOA, but the property manager who managed the townhouse next door refused to do anything or give me the owner's name. The police would not do anything more than take the report unless they saw the violations themselves, which they didn't, but citing the number of reports filed gave me some weight with the owner. The city would not inspect for social services issues unless there were obvious signs, for instance too many cars registered at that address, which there weren't. It took me a while to track down the actual out-of-state owner, who was very surprised. All he knew was he was getting his rent each month. By the time he intervened, they had destroyed his place, and some of the kids living there had been arrested for arson throughout the neighborhood.

One more hint... remember, there are inexpensive Motion activated cameras you can buy (some with audio) to record such activities (dumping, bottles, noise, etc).  Providing the actual owner with video (and audio) evidence is pretty damning, and also places the owner on notice that said activities are taking place.

If sued (especially in small claims court - where you can file serially... one case per infraction to get around the dollar limit), it's always interesting when a tenant lies to the judge and denies ever doing something, and only after that do you play the evidence (it's nice that small claims is informal when it comes to evidentiary rules).  Basically, that's an instant win for you (and in such cases, you should pad the damages as much as possible since an angry judge loves to award them).

@Christopher Brainard , I would echo almost all of the above advice, but would disagree on the contacting an attorney. Even if you file a small claims case your self it helps to have them look over the HOA rules and advise you on the legal theories and evidence needed for your case. Be sure to ask his hourly fees up front and just do a consultation if you want, but it will probably help in the long run. Knowing what you can and cannot say and what your rights are may be important before you start putting things in writing.

Thanks to all those who responded. 

I've instructed the tenant to file a report if any illegal activity is observed and to take photos of the issue and send them to me. I'm also sending a letter to the owner, since I can't seem to get the phone number, in hopes that they are reasonable. I also have a meeting with the HOA board on the 9th, so we will see what response we get from them directly, since the property management company doesn't send violation noticed.

-Christopher

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