Y es, noise is indeed compensable
When homes suffer unbearable noise that gets through and can be heard inside them, and a claim is brought before the courts, the Courts of First Instance, the Provincial Courts and even the Supreme Court have ruled that proving a breach of the regulations in the proceedings is not so important; what matters is proving that the sound insulation really is deficient and, as a result, affects the habitability of the home.
So, for example, if noise can be heard coming from the lift machine room, the developer is liable. And it is possible to claim non-pecuniary damages for that noise, for the nuisance caused to the occupants of those homes by hearing noise above tolerable levels. That in itself constitutes compensable non-pecuniary damage, regardless of whether repair or proper sound insulation is also requested.
The courts require not only that the source of the noise be measured (whether or not it complies with the regulations), but that, in order to claim non-pecuniary damages, what must be measured is the nuisance suffered.
The problem lies in proving the non-pecuniary damage suffered from the noise and vibration intrusion coming, for example, from the lift machine room or from a nearby industrial facility.
The law requires the building work, that is, the house or home, to guarantee the wellbeing of its occupants, and to that end it provides that: buildings must be designed and built with protection against noise, so that the noise perceived does not endanger people’s health and allows them to carry out their activities satisfactorily.
The Supreme Court has established that the question is not whether the administrative regulation has been complied with, but whether there are sound insulation problems affecting the proper habitability of the homes. It is not so much a matter of analysing what produces the noise as of checking whether or not the home has adequate sound insulation.
What is more, excessive and persistent external noise, even if it comes from lawful activities, is not acceptable either when certain limits are exceeded; however much the industrial facility may hold administrative authorisation, that is no justification for disturbing an affected home.
When it comes to assessing the damage, the distance of one house from the source is not the same as that of another, since the owners in a residential development live spread out.
Well, this damage to the owners is regarded as non-pecuniary damage and is compensable, because of the unease, suffering and discomfort that the noise causes the owners, and the loss of quality of life it entails. To assess it, account must be taken of whether the noise is heard, for example, in the main bedroom or in another room, at what times of day or night, and the different distance of each flat from the source of the noise.
The one who has the last word on assessing the amount of compensation is the judge alone. To that end, the courts say that no specific evidence or strict proof is needed; the ruling will not depend on direct evidence, and objective evidence is neither necessary nor mandatory, especially to establish its monetary equivalent. Instead, the circumstances of each case must be considered, so that the judge finds what is being claimed reasonable. That is what the courts say.
But those of us who work day in, day out on cases before the courts would add that the judge must be given the full range and consequences of the suffering and physical or psychological pain endured by the victim: the helplessness, the distress, the anxiety, the anguish as a feeling of unease, the sorrow, the attack on the peace and legitimate quiet enjoyment of the home and the violation of the right to be left in peace.
What evidence of those circumstances can be provided?
As much as possible. As explained, it is not restricted to set types, and anything may be useful: the number of times you have had to see a doctor for anxiety, purchases of sleeping pills from pharmacies, or the measurement of the bedroom partition wall, even opening up an inspection hole in it to check its thickness and whether or not there is insulation, and an on-site acoustic measurement with a sound level meter. Past minutes of the homeowners’ association in which the owners have repeatedly raised the nuisance caused by the noise, or letters of complaint sent to the industrial facility asking it to control its noise levels… Anything may be useful, because every case has its own particularities, nothing is won in advance, it has to be won, and more evidence never hurts.
Any questions?