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by Robin Gerber, AARP Bulletin, December 14, 2009|Comments: 0
When they were in their late 70s, Izrail and Ginda Barskaya Shkolnik emigrated from Russia to Andover, Mass., and moved into a second-floor apartment in a public housing project called Frye Circle. Their building had more than 250 units, mostly occupied by older and disabled tenants.
Can you hold down the noise?
For five years the couple lived at Frye Circle without problems until a neighbor complained that the Shkolniks, now in their early 80s, were too noisy. They turned up their radio and television very loud and argued and yelled, often in the middle of the night. The Andover Housing Authority, which ran Frye Circle, reminded the Shkolniks that their lease required them to respect their neighbors’ rights to “privacy and quiet.”
Two years later, the Shkolniks received another noise-related warning. Meanwhile, complaints from other tenants were increasing. One neighbor, Joanne Taylor, lived directly below the Shkolniks. Because of a sight impairment, she had developed slightly enhanced hearing and was particularly bothered by yelling, stomping on the floor and loud television.
Andover Housing Authority staff brought the Shkolniks in for a private conference. They had also contacted the Shkolniks’ son, who helped interpret for his parents. The Shkolniks agreed to wear earphones while watching television and to stop yelling. But the complaints continued. Joanne Taylor told the housing authority’s staff that she heard screaming and the blaring television daily.
The eviction process
The housing authority began a proceeding to force the Shkolniks out of their apartment, and quickly discovered that Ginda had developed serious health problems. The authority sent a geriatric nurse specialist to evaluate Ginda, who had continuing pain from shingles as well as lymphoma, Alzheimer’s disease and depression. Ginda received intensive medical care that helped her condition somewhat. However, she did not entirely comply with her prescribed treatment, according to court documents.
To complicate matters, the Shkolniks disputed Taylor’s complaints. The couple said they were no longer making noise, and they insisted that the housing authority stop trying to kick them out. Andover arranged a meeting between Taylor and the Shkolniks to try to resolve the dispute, but the couple’s lawyer canceled it. The housing authority was unmoved and filed an action in housing court to force the Shkolniks out of their apartment.
Not so fast
The Shkolniks filed a counterclaim. They denied violating their lease and claimed that the eviction proceedings were causing them severe emotional distress. The Shkolniks also said that the U.S. Fair Housing Act does not allow discrimination based on a handicap—in this case, Ginda’s health problems.
They argued that the housing authority was required to determine whether Ginda was disabled. If she was found to be disabled, the authority had to reasonably accommodate Ginda to allow her to remain in the apartment, the couple argued. Andover could install acoustical carpeting in their apartment and a sound-absorbing ceiling in Taylor’s unit, they said. The housing authority could also put room air conditioners in the couple’s apartment so the windows could be left closed and the noise they made wouldn’t travel as far. By making these changes, the housing authority would be able to withdraw or at least delay the eviction proceedings.
The Andover Housing Authority replied that it had met with the Shkolniks numerous times, but the requests the couple had made were unreasonable. Acoustical carpeting did not exist, the authority said, and Taylor’s ceiling was too low to allow for sound-absorbing tiles. The authority was willing to put in air conditioners, but did not believe this would resolve the problem, considering all the negotiations it had been through with the tenants. The housing authority argued that it had the right to move the Shkolniks out of their unit.
Your turn! Should the Shkolniks have to move out of their apartment? If you were the judge, how would you decide?
Robin Gerber is a lawyer and the author of Barbie and Ruth: The Story of the World’s Most Famous Doll and the Woman Who Created Her.
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