Baum v. Coronado Condominium Ass'n, Inc., 79-12

• Decision Date: 13 November 1979
• Docket Number: No. 79-12,79-12
• Citation: 376 So.2d 914
• Parties: Herman R. BAUM and Sylvia M. Baum, his wife, Appellants, v. CORONADO CONDOMINIUM ASSOCIATION, INC., a Florida Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 914

376 So.2d 914

Herman R. BAUM and Sylvia M. Baum, his wife, Appellants, v. CORONADO CONDOMINIUM ASSOCIATION, INC., a Florida Corporation, Appellee.

No. 79-12.

District Court of Appeal of Florida, Third District.

Nov. 13, 1979.

Joseph J. Glazer and Sidney Advocate, Hallandale, for appellants.

Nelson & Feldman and Michael K. Feldman, Miami, for appellee.

Before PEARSON and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

CHARLES CARROLL (Ret.), Associate Judge.

The appellants, owners of an apartment in a condominium building, filed this action against the condominium association, seeking an injunction to abate a nuisance alleged to be maintained by the defendant. Plaintiffs applied for and obtained a temporary restraining order. Following a nonjury trial the court entered a judgment dissolving the restraining order and dismissing the cause with prejudice. We find error, and reverse.

By their complaint the plaintiffs sought to abate a nuisance maintained by defendant condominium association consisting of noises from an uninsulated and uncovered portion of the lobby (above their apartment) alleged to disturb plaintiffs so as to deprive them of the free use and enjoyment of their apartment.

The evidence presented by plaintiffs, which was not in conflict or contradicted, clearly supported the allegations. Under the applicable law the plaintiffs were entitled to injunctive relief to abate such nuisance. Mercer v. Keynton, 121 Fla. 87, 163 So. 411, 413-414 (1935); Mayflower Holding Co. v. Warrick, 143 Fla. 125, 196 So. 428 (1940); Knowles v. Central Allapattae Properties, 145 Fla. 123, 198 So. 819, 822 (1940); Palm Corporation v. Walters, 148 So. 527, 4 So.2d 696, 699 (1941); Jones v. Trawick, 75 So.2d 785, 787 (Fla. 1954); and Town of Surfside v. County Line Land Company, 340 So.2d 1287, 1289 (Fla. 3d DCA 1977).

In Mayflower Holding Co. v. Warrick, 143 Fla. 125, 196 So. 428, 429 (1940), the Supreme Court said:

"In the case of Mercer v. Keynton, 121 Fla. 87, 163 So. 411, 413, this court said:

'An owner or occupant of property must use it in a way that will not be a nuisance to other owners and occupants in the same community. Anything which annoys or disturbs one in the free use, possession, or enjoyment of his property or which renders its ordinary use or occupation physically uncomfortable may become a nuisance and may be restrained.' "

In Jones v. Trawick, 75 So.2d 785, 787 (Fla.1954), the Court said:

"This court recognizes that the law of private nuisance is bottomed on the fundamental rule that every person should so use his own property as not to injure that of another, as expressed in the maxim Sic utere tuo ut alienum non laedas, Reaver v. Martin Theatres of Florida, Inc., Fla., 52 So.2d 682, 683, 25 A.L.R.2d 1451, and that 'Anything which annoys or disturbs one in the free use, possession, or enjoyment of his property, or which renders its ordinary use or occupation physically uncomfortable, is a "nuisance" and may be restrained.' Knowles v. Central Allapattah Properties, Inc., 145 Fla. 123, 198 So. 819."

In Bartlett v. Moats, 120 Fla. 61, 162 So. 477, 479 (1935), the Supreme Court quoted from an opinion of Vice-Chancellor Pitney in Gilbough v. West Side Amusement Co., 64 N.J.Eq. 27, 53 A. 289, as follows:

" 'That mere noise may be so great at certain times and under certain circumstances as to amount to an actionable nuisance and entitle the party subjected to it to the preventive remedy of the court of equity is thoroughly established. The reason why a certain amount of noise is or may be a nuisance is that it is not only disagreeable but it also wears upon the nervous system and produces that feeling which we call "tired. " That the subjection of a human being to a continued hearing of loud noises tends to shorten life, I think, is beyond all doubt. Another reason is that mankind needs both rest and sleep, and noise tends to prevent both.' "

Upon filing action against the condominium association, the plaintiffs applied for and obtained a temporary restraining order, which was entered after a hearing on notice at which the parties presented evidence. Therein the court made the following findings of fact and conclusions of law:

"1. The Court finds that the removal of the carpeting by the Coronado Condominium Association has resulted in a disruption of the plaintiffs' right to quiet and peaceful enjoyment of their condominium apartment, and further

"2. The Court finds that to permit the present condition to exist would constitute a constructive eviction of the plaintiffs from their condominium unit, in violation of due process of law, and further,

"3. The Court finds that to permit the present condition to continue to exist would result in irreparable harm and injury to the health and well-being of the plaintiffs, who are elderly people and are entitled to the protection of the Condominium Association, and further

"4. The Court finds that the Board of Directors of the Coronado Condominium Association voluntarily agreed to lay the carpet to prevent the existence of noise and other commotion, that said carpet was in existence for a period of fourteen months prior to this hearing, and that said Board of Directors is estopped from removing said carpeting under the present conditions that exist."

The material facts, which were not in dispute, included the following. The condominium consists of a 25-story building, in which there are 250 apartments or units. The building's lobby is on the third floor. The plaintiffs' apartment is on the second floor, located directly below the lobby. The lobby is carpeted, except for a corridor leading from the entrance to the bank of elevators. The corridor is 12 feet wide and approximately 30 feet long to a right angle turn, and then 9 feet wide and 23 feet further to the elevators. The flooring of that corridor portion of the lobby is terrazzo, one inch in thickness, laid directly on the uninsulated concrete lobby flooring. The corridor in question is used by occupants of the apartments on the upper floors in going to and from their apartments, and in going to and from the outside pool area. The other corridors in the building were carpeted.

Prior to purchasing their apartment, located beneath the lobby, plaintiffs were advised by the developer's engineer that the lobby floor would be soundproofed. When they first inspected their apartment, they noticed no noise from above, because the corridor in question had been covered (by the developer) with a rubber matting runner. Likewise when plaintiffs moved into their apartment in September of 1976 they were not bothered by noise from the corridor above, on which the rubber matting then remained. Shortly thereafter the rubber matting was removed. Because of the noise resulting from the uncovered terrazzo corridor, they complained to the developer, who then owned the condominium association corporation. A representative of the developer verified the existence of the noise, in person and with the aid of a scientific device. Having done so the developer then covered the terrazzo corridor with carpeting to eliminate the noise. After two days, by agreement between the ad hoc president of the unit owners' association and the developer, the carpet was taken up during the daytime and replaced each night.

In May of 1977 the ownership of the condominium association passed from the developer to the unit owners. Thereupon the condominium association was in control and management of the condominium building.

Following complaints by the association to the developer based on failure of the lobby floor to have been insulated, ¹ the developer by letter to the condominium association offered to take certain steps to correct the noise condition affecting Mr. and Mrs. Baum in their use and enjoyment of their abode. ² In reply thereto the condominium association sent a letter in which it rejected the developer's offer to correct the situation. ³

From then until February of 1978 the condition continued with the corridor being covered by a carpet during the nighttime portion of each day. In February of 1978, at direction of the board of directors, the association removed the carpeting from the corridor and plaintiffs then filed this action.

The evidence presented by plaintiffs was amply sufficient to show that noise from the unprotected terrazzo corridor annoyed and disturbed plaintiffs in the free use and enjoyment of their apartment to the extent that it rendered its ordinary use physically uncomfortable. It would serve no useful purpose to detail further the testimony regarding that matter. ⁴ No evidence in contradiction thereof was presented by the defendant.

The judgment denying relief to the plaintiffs, which was entered on final hearing held before another judge, did not contain any findings of fact or conclusions of law. However, statements of the court in the course of the arguments of counsel on the final hearing showed several reasons relied on by the court as the basis for dismissing the action. We hold such reasons, which are discussed below, were legally insufficient to deny relief...