#410-O, Kaplan v. Wintergate at Longmead Condominium (May 21, 1999) (Panel: Hickey, Jacobson, Weiss)

The condominium owner (CO) filed a complaint against the condominium association (CA) claiming that it failed to maintain the common elements in violation of its bylaws, because it did not eliminate loud squeaking sounds coming from the subfloor of the unit above them.

The evidence at the hearing showed that the CO first notified the CA of the problem when the CA was involved in litigation against the builder, and advised the CO that the claim would be included in the case.  The parties continued to negotiate over the issue in the year that followed and some repairs were made but they did not resolve the problem.  The hearing was continued to allow the CA to inspect the CO's unit to further isolate the location of the squeak, but the CA's evidence showed that the CO never made arrangements to allow the inspectors into his unit.  There was also evidence that some noise is to be expected from a wood floor, even one that is properly constructed.

The hearing panel found that the CO had not cooperated in the CA's efforts to verify the severity of the noise and to locate its cause, and it further found that the existence of some noise did not by itself prove that the noise was excessive or caused by any defect in the floor.  The panel therefore held that the CO had failed to prove that the noise was a failure of the CA to properly maintain the common elements, and it dismissed the complaint.