Property Law in the Work-From-Home Era

Hayley Goodman- As the global workforce is starting to return to the office, it is no surprise that many companies are shrinking their real estate footprints. A June 2020 Morgan Stanley forecast revealed that vacancy rates would reach 10%-12% in the next two to five years in New York City. Moreover, a KPMG survey found that 68% of large-company CEOs plan to decrease their office footprint. Namely, Ford Motor Co. is re-imaging its workspaces to prepare for a new era, where employees are given the flexibility to work from home, even when COVID-19 is no longer a threat.

For better or for worse, the workplace dynamic is changing. This change has the potential to lead to numerous landlord-tenant lawsuits and resident conflicts with local zoning and planning boards. Noise pollution, particularly in urban areas, is something that comes with the territory of apartment living. However, construction noise stemming from nearby real estate development as well as from projects coming from individual apartment buildings and condominiums are causing difficulties for those newly working from home.

Construction and Zoning

Even in the pandemic’s height in Spring 2020, construction projects were allowed to continue in many places, as they were deemed essential under public health orders. In San Francisco, construction workers continued to build luxury high-rise condos when everything else was shut down. Residents claimed that you could find construction projects simply by listening, as the streets were so quiet. While some people felt that the projects posed a health risk to the construction workers, others argued that the projects’ continuance was important for the economy—a sentiment that people share around the country, as many continue to struggle financially.

Here in Miami, Edgewater residents were outraged about the 24/7 construction noise from an upcoming high-rise tower being built on Bayshore Drive. Due to the pandemic, they were trapped inside, forced to listen to the construction noise. Such loud environments make it difficult for workers to complete tasks and log into and participate in Zoom meetings with their teams. A resident of Melbourne, Australia, commented that workers were effectively “all on the night shift,” as noise pollution made it difficult to work during the day. City planning and zoning commissions have historically given real estate developers license to create long-lasting and arguably unreasonable noise pollution in neighborhoods in the name of the economy. Nevertheless, time will tell whether seven-day-per-week construction permits without extensive time restrictions should be left in the past.

Landlord-Tenant Issues

Working from home can also create issues between landlords and tenants. Property law grants tenants quiet enjoyment in their homes, allowing them to use the property without substantial and unreasonable interferences. Of course, anyone who has ever lived in an apartment building could tell you that loud construction projects and other types of noise are not precluded under quiet enjoyment. Smaller-scale construction projects within individual apartment buildings and condominiums continue to occur even though many residents spend most of their days inside their homes. Anecdotally speaking, it seems like any Miami resident that you speak with is living with some sort of construction project—ranging from minor interferences to unbearable nuisances.

While the law cannot change overnight, landlords and tenants should consider being more specific in their lease agreements regarding what types of nuisances are permissible and how often they can occur. Perhaps, landlords and tenants can agree that construction projects can occur only on some weekdays and for specified hours instead of leaving the reasonability of a nuisance up to interpretation. Not only would such agreements foster better relationships between landlords and tenants, but they would also lessen the number of lawsuits clogging the court system.

Concluding Thoughts

As companies are reimagining their workspaces to protect their employees’ health and are considering moving their workforce fully or partially remote in the post-pandemic world, employers should consider the productivity issues that come with that decision. While the real estate world may eventually adapt to consider the needs of residents who work from home, employers who can afford it should provide office spaces for those impacted by nuisances, if it is safe to do so.

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