David Swedelson and Diana Wright's presentation on dealing with nuisance violations in common interest developments.

1. 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

2. 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.

3. 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.

4. 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.)

5. 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.

6. Odor Nuisances
 Odors can be offensive or noxious, and can constitute
a nuisance.

7. 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.

8. 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.

9. 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.

10. Odor & Visual Nuisance
Pet Droppings

11. Smoking
Cigarette, Cigar, Pipe and Marijuana Smoke
 A number of California cities have banned smoking in
public places.

12. 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.

13. 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?

14. 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.).

15. 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.

16. Smoking
Cigarette, Cigar, Pipe and Marijuana Smoke
 What about a “hypersensitive” person?
 What about the use of medical marijuana?

17. 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.).

18. 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.

19. 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.

20. 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.

21. 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.

22. Music, TV, Yelling, Parties &
Band Practice
 How do you deal with a noise complaint?

23. How to Deal With
Hypersensitive People

26. 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.

27. 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.

28. 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.

29. 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?

30. 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.

31. 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.

32. 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

33. 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.

34. Visual Nuisances
 Clutter on balconies, patios, parking spaces, carports
and yards constitutes a visual nuisance that affects the
aesthetics of the development.

35. Visual Nuisances
 Window coverings, address plates and doors must
comply with the association’s architectural guidelines.

36. Fires
 Fires on balconies, decks and yards pose a health and
safety issue, as well as potential nuisance issues.

37. Fires
 Fumes, smoke, cinders and ash that stem from outdoor
fires (fireplaces, fire pits) can annoy the occupants of
neighboring residences.

38. 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.

39. 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.

40. 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.

41. 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.

42. 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.

43. 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?

44. 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?

45. 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.

46. 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.

47. 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.

48. 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.

49. 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.