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LITIGATION 4: Plaintiff claimed installation of hardwood flooring breached the condo bylaws.

Plaintiff and defendants’ own condominiums in the same building; defendants’ unit is directly above plaintiffs.

In 2016, plaintiff filed suit against defendants, alleging that they had installed new hardwood flooring in their unit that caused noise to resonate down into her unit, disturbing her sleep and otherwise bothering her during both night and day. Plaintiff further alleged that defendants refused to rectify the problem even though she offered financial assistance.

Plaintiff claimed that the installation of the hardwood flooring was in breach of the condominium master deed and bylaws; she additionally asserted counts alleging nuisance, nuisance per se, breach of quiet enjoyment, trespass, and intentional infliction of emotional distress.

Defendants filed a counterclaim for abuse of process and tortious inference with a business relationship. The trial court dismissed defendants’ counterclaim.

In 2017, the parties participated in a mediation that resulted in a written settlement agreement (the agreement). The agreement provided for the following:

1. Carpeting would be installed with standard padding in the bedrooms of defendants’ unit.

2. The hardwood flooring in the living room, main hallway, and kitchen of defendants’ unit would be taken up and reinstalled with new flooring material of defendants’ choosing over an unspecified sound deadening underlayment to be chosen by plaintiff.

3. Plaintiff would have the right to supervise the work, either individually or through an agent(s).

4. The parties would share the costs equally, but the total costs would not exceed $15,000.

5. The project would be completed by August 20, 2017.

6. The agreement would be a recordable covenant that runs with the land, which would end when plaintiff permanently vacated her unit.

7. The agreement was the entire agreement between the parties, and it could not be amended except in a writing signed by all parties.

In July 2017, plaintiff moved to enforce the agreement, contending that defendants had not performed their contractual obligations. Plaintiff asserted that she had had the right to observe and inspect the project as it was being completed. Plaintiff also complained that she had not received notice of when the project would get underway and that defendants had failed to provide her with information regarding the materials being installed.

Defendants completed the project. Plaintiff did not pay for any of the costs of the project. Defendants moved to compel plaintiff to pay one-half of the costs under the agreement. Plaintiff responded that defendants had materially breached the agreement in several ways, including by denying her the right to supervise the project, by refusing to give her an installation schedule, and by starting work before plaintiff approved of the start date.

Plaintiff argued that she was not required to perform under the agreement because of defendants’ material breach. The court found that defendants did not materially breach the agreement, plaintiff was not relieved of her payment obligation.  The trial court granted defendants’ motion and entered the judgment of payment.

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