Dealing with Nuisance Violations February 14, 2012 CAI – Orange County Regional Chapter Presented By:David C. Swedelson, Esq. – Senior Partner, Swedelson & Gottlieb Diana Wright, CCAM, PCAM – Action Property Management
What is a Nuisance? An activity that unreasonably interferes with the use or quiet enjoyment of another resident of their separate interest or exclusive use common area. A use that creates conditions that are hazardous, noxious or offensive.
What is a Nuisance? An activity that causes the cancellation or non-renewal of an insurance policy maintained by the association or another owner. A violation of any applicable local, state or federal law.
Common Nuisances Odors (e.g. smoke (cigarettes, cigars, marijuana), garbage, pets, food, etc.) Noise (e.g. loud conversations, yelling, screaming, sex noise, running, bells, whistles, horns, musical instruments, televisions, hard surface flooring, etc.) Visual (e.g. clutter on balconies and patios, etc.) Health and Safety (e.g. outdoor fires, pests and rodents, hoarding, smoking, etc.)
CC&R Nuisance Restrictions Most CC&Rs contain a “nuisance” section addressing the definition of nuisances and their prohibition. Nuisance violations should be handled by an association’s board of directors in the same manner as other types of governing document violations. If an association does not act timely and decisively in enforcing nuisance covenants, then the association may be unable to enforce those nuisance covenants and/or the association maybe sued.
Odor Nuisances Odors can be offensive or noxious, and can constitute a nuisance.
Odor Nuisances Food, pet waste, garbage and other items within a unit/lot or exclusive use common area can not only be unpleasant to neighboring residents, but can attract pests and rodents, which pose a health and safety issue.
Odor Nuisances Owners are required to keep their unit/exclusive use common area/lot clean, sanitary and in good repair, and cannot allow garbage, refuse and waste to accumulate.
Odor Nuisances An odor issue that community associations are faced with is the smell of ethnic foods and the spices and foodstuff used in their preparation – prohibiting ethnic food or its preparation could become a potential fair housing violation and would likely be seen as unreasonable.
Smoking Cigarette, Cigar, Pipe and Marijuana Smoke A number of California cities have banned smoking in public places.
Smoking Cigarette, Cigar, Pipe and Marijuana Smoke Some cities have gone as far as effectively prohibiting smoking on separate interest balconies and patios in multi-dwelling unit residential buildings.
Smoking Cigarette, Cigar, Pipe and Marijuana Smoke An association can prohibit smoking in common areas (including exclusive use common areas). What about prohibiting smoking in units or anywhere on the property?
Smoking Cigarette, Cigar, Pipe and Marijuana Smoke An owner can be required to take steps to minimize the impact of their smoke on or from other units to avoid the creation of a smoke nuisance (e.g. use air circulators/fans/cleaners, not smoke near open windows, seal air ducts, etc.).
Smoking Cigarette, Cigar, Pipe and Marijuana Smoke In many instances, smoking complaints between units are considered a neighbor-to-neighbor dispute that may not affect the community as a whole.
Smoking Cigarette, Cigar, Pipe and Marijuana Smoke What about a “hypersensitive” person? What about the use of medical marijuana?
Hoarding Hoarding is a pattern of behavior that is characterized by the excessive acquisition and inability or unwillingness to discard large quantities of objects that would seemingly qualify as useless or without value. This behavior often results in living spaces being so cluttered that those spaces cannot be used for their designed purposes (e.g. cooking, cleaning, moving through the dwelling, sleeping, etc.).
Hoarding Hoarding can pose a danger to the hoarding owner and his/her neighbors of risk of fire, pests and vermin, mold growth and other health concerns. Compulsive hoarding syndrome is considered a psychiatric disorder associated with obsessive-compulsive disorder, paranoia and schizophrenia, and there could be fair housing issues that apply when an association deals with a hoarding situation.
Music, TV, Yelling, Parties & Band Practice The most common nuisance issues at many common interest developments involve noise nuisances, both within the common area (e.g. pool area, clubhouse, etc.) and individual residences.
Music, TV, Yelling, Parties & Band Practice Most CC&Rs and/or operating rules of associations prohibit loud and raucous noises, and residents and their guests should be required to comply with these requirements.
Music, TV, Yelling, Parties & Band Practice A particular issue to be concerned with is the placement of speakers and other noise devices for TVs, stereos and video game consoles and the vibrational energy from these devices which can affect neighboring residences.
Music, TV, Yelling, Parties & Band Practice How do you deal with a noise complaint?
Hard Surface Flooring Carpet And Padding Are A Lot Quieter Than Hard Surface Flooring Most condominium associations’ CC&Rs do not prohibit hard surface flooring. Most cities have ordinances that either require a permit and/or specify the sound attenuation required; usually a very low threshold.
Hard Surface Flooring Carpet And Padding Are A Lot Quieter Than Hard Surface Flooring An association can amend its governing documents to add hard surface flooring prohibitions and/or approval and sound requirements for hard surface flooring in upper level units.
Hard Surface Flooring Carpet And Padding Are A Lot Quieter Than Hard Surface Flooring Proper sound attenuating materials under the floor covering, the placement of area rugs with appropriate thickness padding in high traffic areas and the placement of felt cushions under furniture legs can help reduce noise (and be required of owners to minimize noise). If unit floor coverings are not compliant with an association’s governing documents, the association can require removal of the flooring and the installation of compliant flooring materials. These noise nuisance issues need to be addressed with deference to the sensibilities of an average person, not a hypersensitive person. Testing can be done to determine the decibel level of flooring noise; this testing should be paid for and conducted by the complaining owner and submitted with their complaint/violation notice to the association.
Hard Surface Flooring Carpet And Padding Are A Lot Quieter Than Hard Surface Flooring Enforcement Options Lawsuit seeking removal of flooring Require area rugs, padding and covenant to run with the land Grandfathering Do you have to?
Pets Loud and/or continuous barking (and other animal noises), soiling in the common area, damage to common area property and unleashed/uncontrolled animal access in the common area are all examples of common pet violations.
Pets Some CC&Rs limit the number, type, size, weight and breed of pets that may be kept in a unit; however, Civil Code Section 1360.5 requires that at least one domesticated animal be permitted in a separate interest if an association has adopted or amended its governing documents (including its CC&Rs and operating rules) since January 1, 2001.
Pets An association can force the removal of a pet that becomes a nuisance, and the association in such case can seek reimbursement of its attorneys’ fees when prevailing. Case Study – San Vicente v. Cohen
Visual Nuisances If something can be seen from the common area, another unit/lot or the street and it is unattractive, it may be a visual nuisance.
Visual Nuisances Clutter on balconies, patios, parking spaces, carports and yards constitutes a visual nuisance that affects the aesthetics of the development.
Visual Nuisances Window coverings, address plates and doors must comply with the association’s architectural guidelines.
Fires Fires on balconies, decks and yards pose a health and safety issue, as well as potential nuisance issues.
Fires Fumes, smoke, cinders and ash that stem from outdoor fires (fireplaces, fire pits) can annoy the occupants of neighboring residences.
Fires With regard to the use of indoor fireplaces, firewood kept outdoors (as may be permitted) should be required to be kept in certain amounts and areas where it does not become a visual nuisance or hiding place for residents.
Home Offices If there is a blanket ban on commercial activities in an association’s governing documents, then technically no home office is permitted. Reasonably speaking, a teacher grading papers, a lawyer reviewing documents, an accountant preparing tax returns, etc., would not be a commercial activity. Courts will be more likely to enforce if there is actual commercial activity, such as employees, customers or clients, deliveries and the like. Impact on the residential character of the community.
Home Offices If home offices are permitted, the following should be prohibited to protect the common area and avoid the creation of a nuisance: No items should be manufactured, stored or sold from or in the unit/lot in a manner that is visible from the common area; No employees should work in the unit/lot; and No clients, customers, messengers, delivery personnel or other individuals should regularly visit the unit/lot or cause a nuisance at the development.
Construction Activities Owners must obtain any required advance written approval from the association before engaging in construction activities in their residence. Construction activities need to be conducted in accordance with plans and specifications approved by the association.
Construction Activities An owner’s construction activities should not create an unreasonable annoyance to the residents of the development. An association can establish set days and times for construction activities to minimize any disturbance to neighboring property owners. Owners can, as a part of the architectural approval process, be required to advise their neighbors in advance of the days and times of approved construction activities in their unit/lot.
Enforcement Issues Nuisances can be dealt with in the same manner as other governing document violations. If permitted by the governing documents, fines and suspension of membership rights (voting and use of common area recreational facilities) can be imposed after a properly noticed hearing with an opportunity to be heard by the board. Does your association have a violation and/or hearing policy? IDR or ADR? Legal action seeking injunctive relief may be required. A board that does not act timely and decisively to enforce nuisance restrictions can expose the association to court-imposed penalties (and the board could be subject to a breach of fiduciary duty claim). Boards should not be vague, arbitrary or unreasonable in their enforcement of nuisance provisions – nuisance provisions in governing documents can backfire. Consider the Florida case involving the $201,347 wastebasket for junk mail. Precedent? Lack of prior enforcement? Claims of selective enforcement?
Neighbor-to-Neighbor Disputes An association has a general duty to enforce its governing documents, including nuisance restrictions. But does an association have to take action on every nuisance complaint?
Neighbor-to-Neighbor Disputes There are some cases where a complaint raised by an owner or owners is in actuality a neighbor-to-neighbor dispute that does not involve the community interest. A board should ALWAYS check with association legal counsel if it is considering making this determination to ensure it is in a defensible position to make that determination.
Neighbor-to-Neighbor Disputes Even if a board determines that the association does not have a duty to resolve a nuisance issue between owners, it is possible (or perhaps likely) that the association will be dragged into a lawsuit involving the matter. A board should consider engaging in a three-way mediation with the owners and the association to try and help resolve the issue and avoid the association being named, and having to defend itself, in a lengthy and expensive enforcement action/lawsuit.
Fair Housing Laws State and federal fair housing laws require that an association make reasonable accommodations to residents with physical or psychiatric disabilities. These reasonable accommodations may require the association to permit activities and uses that would otherwise constitute a nuisance under the association’s governing documents, such as: Pet breed, size and weight, and the number of pets that may be maintained in a separate interest; Architectural modifications; and Parking. An owner requesting a reasonable accommodation should be required to provide documentation from a licensed medical doctor regarding the need for the reasonable accommodation. An association’s board of directors should confer with association legal counsel when addressing reasonable accommodation requests to ensure that the association is responding appropriately to such requests.
Summary An association should systematically and uniformly review nuisance complaints and, if appropriate, enforce the nuisance provisions contained in its governing documents. When amending CC&Rs or preparing new operating rules, a board should consider preparing and proposing nuisance provisions that are detailed enough to allow for enforcement of the various nuisances the association may encounter.
Summary There are many types of nuisances, and in some cases a nuisance may constitute a neighbor-to-neighbor dispute. But that does not necessarily mean that the association should or can ignore the issue? An association should confer with its legal counsel when dealing with nuisance issues that may involve possible legal action against an owner, resident or the association, statutory protections, complicated facts and fair housing laws to ensure that the board’s actions with respect to the nuisance are defensible and that the association is properly addressing the situation.