LHC Newsletter Vol. 7, No 3.
“Associations and Nuisances – When and How Should the Board Act”
By: David A. Loewenthal, Esq. and Robert D. Hillshafer, Esq.
What may constitute a nuisance and when the Board should take action to address a nuisance is the topic of many Board discussions. The perception that a nuisance exists is often based upon the subjective thoughts, opinions and reactions of the complaining party. More succinctly, what may be acceptable to one homeowner may not be acceptable to another owner. Thus, determining whether to characterize something as a nuisance and how to address it is often problematic.
Most Association governing documents include a nuisance provision such as the following:
“The illegal, offensive, obnoxious or noxious odors from any source that interfere with any occupants quiet enjoyment are not permitted anywhere on the property. An occupant may not cause the level of noise or sound from the unit to interfere with the quiet enjoyment of an occupant of another unit (i.e., loud music or television, shouting, slamming of doors, and other such actions).” If sounds coming from within a unit can be heard in the common area or in another unit, this shall cause a nuisance. This includes excessive noise or vibration from air conditioning units or similar mechanical devices. Unless otherwise permitted by the Board, no owner shall serve food or beverages, cook, barbeque, or engage in similar activities, accepting within such owners unit and excepting within those portions of the common area subject to exclusive easements appurtenant to such owners unit if any. The Board shall have the right to determine if any situation, action, odor, noise or other conduct constitutes a nuisance, and to appropriately deal with the situation, including, but not limited to, seeking injunctive relief to compel cessation. If the Board makes a determination that a nuisance exists, the Board shall use reasonable, non-litigation means and methods to effectuate the abatement of the nuisance. These means shall include convening a hearing pursuant to Civil Code Section 5855 prior to imposing discipline upon the owner causing or responsible for the nuisance and the imposition of monetary fines or suspension of Association rights. The Board shall not be required to pursue injunctive relief to abate a nuisance unless it determines, in its sole discretion, that the best interest of the Association and its members would be best served by instituting a lawsuit for injunctive relief because of the widespread affect and the serious nature of the nuisance.”
Nuisance provisions can be quite broad and cover an array of topics including, but not limited to, noise, visual issues, odor/smells, etc. The mere existence of noise, odors, visual issues, etc. does not in and of itself create an actionable nuisance. Though a nuisance is defined as conduct or an event that interferes with another members use and enjoyment of their property, such analysis must be tempered with whether or not the “nuisance” is actually creating an unreasonable interference with the aggrieved parties use and enjoyment of their property. Especially in a condominium project, where owners live in close proximity to each other and share common walls and/or floor/ceilings, it is unreasonable to assume that there will not be some level of sound, odor or other event that one neighbor is subjected to from another neighbor. Again, the issue is whether or not the event or “nuisance” is “unreasonable” and whether there has been an injury to the aggrieved party’s legal rights.
Again, such nuisances can come in many forms including, but not limited to loud music, slamming of doors, dogs barking, food preparation and cooking, smoking of cigarettes, cigars, pipes, marijuana, storing debris on patios or balconies, etc. These may all constitute forms of nuisances which the Board would have to evaluate and determine how, if at all, they wish to act upon.
In the case of Schild v. Rubin, 232 Cal.App.3d 755 (1991), the court held as follows: “Every annoyance or disturbance of a landowner from the use made of property by a neighbor does not constitute a nuisance. The question is not whether the plaintiffs have been annoyed or disturbed … but whether there has been an injury to their legal rights. People who live in organized communities must of necessity suffer some inconvenience and annoyance from their neighbors and must submit to annoyances consequent upon the reasonable use of property by others.”
The difficult task for the Board of Directors is determining what action to take, if any, when notified of a “nuisance” by an aggrieved member. Boards should take reasonable steps to investigate the claim and make a good faith, reasonable evaluation as to whether or not the claim is such that it constitutes a nuisance and warrants further Board action. This may very well entail sending a warning letter to the member who allegedly is creating the nuisance requesting that further information be provided as to a complaint made against them; requesting the owner to cease and desist the action that is the basis of the nuisance allegation; scheduling a Board hearing for the individual who is allegedly creating the nuisance pursuant to Civil Code Section 5855 for the purposes of determining if a fine or other disciplinary action should be taken against that homeowner; filing an injunctive relief action with the Court.
The Board, in evaluating a nuisance claim does not only need to determine whether or not the claimed action constitutes a nuisance, but must also determine if the nuisance is one that is affecting only one (1) neighbor, i.e., a neighbor to neighbor dispute wherein the aggrieved party could take their own independent action against the member creating the nuisance or, if the nuisance is such that it is affecting a larger portion of the membership of the Association as a whole or constitutes a health/safety concern. Depending upon the extent of the “nuisance” and what the actual nuisance is will impact what steps the Board of Directors should ultimately take.
Also important in the analysis of what action to take is the unbudgeted expense to be incurred by the Association. Case law in California provides the Board with broad discretion to decline to take legal action if the Board determines it would not be a wise use of Association funds. This is particularly true when the “victim” has the ability to pursue a legal claim.
