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Articles Posted in Enforcement

how-should-a-weak-leader-stand-up-against-butt-in-590b43b68caabHomeowners associations (“HOAs”) are governed by a group of volunteer members known as a “Board of Directors” (“Board”). Their primary responsibilities include: (1) managing the common areas, (2) managing the HOA’s finances, (3) setting policies to assist in the operation of the HOA, and (4) enforcing those policies along with the HOA’s governing documents. The Board is therefore vital to the effective operation and management of the HOA, as well as preserving the property values of the HOA’s members.

As indicated previously, one of the primary responsibilities of the Board is to enforce the governing documents. (See Posey v. Leavitt (1991) 229 Cal.App.3d 1236.) In fact, a majority of members purchase their units within the Association in reliance on the governing documents being consistently and faithfully enforced by the Board. However, that power may be abused in situations where a director uses his or her position to target and/or harass particular residents within the community. (See generally Nahrstedt v. Lakeside Village Condominium Association (1994) 8 Cal.4th 361, 383 (“Of course, when an association determines that a unit owner has violated a use restriction, the association must do so in good faith, not in an arbitrary or capricious manner, and its enforcement procedures must be fair and applied uniformly.”).) It is therefore important that the Board, and not any one individual Board member, take action to enforce the governing documents.

The foregoing is not to say that individual directors are precluded from observing and reporting violations. Indeed, a HOA necessarily relies on its members (including its Board members) to report instances where the governing documents may have been breached. Photographing the potential violation is not problematic to the extent that the photograph captures an area that may be observed from a lawful vantage point (e.g., the common area). However, upon observing/documenting a potential violation of the governing documents, the observing party must report that observation to the HOA’s community manager (“Manager”) so that same may initiate the procedures contained in the Association’s enforcement policy (“Policy”). Individual directors should never communicate directly or indirectly with residents concerning their ostensible violation(s) because doing so heightens the concerns referenced above.

Additionally, it is important to point out that the Manager is not acting on his or her own volition; rather, the Manager is executing the duties delegated to him or her by the Association. Therefore, the Manager is acting on behalf of, and at the direction of, the Association. This distinction is important because it underscores the fact that the action is being taken by the Association or at the Association’s direction, and not by any one individual.

In light of the foregoing, each Board member should employ the following procedure when observing a violation of the HOA’s governing documents:

  1. Any observed violation shall be reported to the Manager in writing and shall include any supporting information (e.g., a detailed description of the violation, photographs, etc.).
  2. Thereafter, the Manager, and not the observing Board member, must comply with the procedural requirements contained in the HOA’s Policy, which typically requires the preparation and mailing of a “courtesy notice” to the offending resident advising same of the alleged infraction.
  3. If the violation continues to occur, the Board should direct the Manager to prepare correspondence inviting the offending resident to a hearing before the Board.
  4. At the hearing, the Board may impose discipline pursuant to the Association’s governing documents.
  5. The observing Board member must not communicate with the offending resident at any point during the enforcement process (unless otherwise authorized by the Board).
California HOA lawyers The foregoing procedure emphasizes the fact that the HOA acting through the Board, and not any individual member of the Board, enforces the governing documents. Following this procedure will mitigate the Board members’, and by extension, the HOA’s, liability exposure.

-Blog post authored by TLG Attorney, Matthew T. Plaxton, Esq.

dogparkdogsOne of the many benefits of living in a homeowners association (“HOA”) is the amenities provided to its residents. Common amenities include recreational rooms, pools, and fitness facilities. One amenity gaining in popularity is designated for the community’s canine companions: dog parks. Dog parks provide dogs with a designated off-leash area where they can run, exercise and play while minimizing damage to other common areas. However, having such an amenity could increase a HOA’s liability exposure, especially if the dog park is not designed properly and the HOA does not have rules and regulations governing the use of the dog park. Accordingly, the purpose of this article is to provide HOAs with best practices and guidance on adopting rules regulating the dog park.

Design

For HOAs contemplating the construction or installation of a dog park, or for those with pre-existing dog parks, the Board of Directors (“Board”) should consider the park’s design. One critical design aspect is the fence enclosing the dog park; the fence should be tall enough so that a large dog cannot jump over it. Additionally, the entrance into the dog park should be through a double-gate system. Such a system reduces the likelihood of a dog escaping. Finally, the HOA should also have two separate areas; one for larger dogs and one for smaller dogs. These are just a few of the design features a Board should consider when creating or modifying a dog park.

Rules

Most HOAs already have rules regulating the maintenance of pets within the community. However, if a HOA is considering installing a dog park, it should incorporate rules specific to the park. Moreover, those rules should be posted at all entrances to the park in a highly visible location.

Some rules to consider include the following:

  • Dogs are permitted to be off leash while in the dog park provided that they are able to respond to audible controls, such as whistling.
  • Dogs must be leashed upon exiting the dog park.
  • Dog owners shall remain in the dog park and shall maintain visual observation of their dog at all times.
  • Dogs must be current on all vaccinations.
  • Dogs with known violent propensities or aggressive behavior are prohibited from using the dog park. Any dog showing signs of aggression while in the dog park shall be removed immediately by the dog owner.
  • Owners shall pick up their dog’s waste. Waste must be put in a tightly sealed plastic bag before being disposed of.
  • Owners are required to fill any holes created by the owner’s dog.
California HOA lawyers Dog parks are a great amenity but can increase a HOA’s liability exposure. It is therefore important for the Board to engage legal counsel before beginning the process of constructing and installing a dog park to ensure that the HOA is protected.

-Blog post authored by TLG Attorney, Matthew T. Plaxton, Esq.

dji-drones-update-registration-2

Serial dog poop litterers, unauthorized parking of vehicles, architectural violations, smoking nuisance—the list goes on and on when it comes to common “repeat violations” that a homeowners association (“HOA”) encounters on a day-to-day basis. With the increasing number of repeat violations and limited number of HOA board members and property managers, questions have surfaced whether or not HOA’s may, or should, utilize drones to enforce violations. Specifically, HOA boards are concerned with the legal implications that such utilization may impose because, well, why wouldn’t an HOA board want to send out a drone to inspect an architectural violation or monitor a smoking nuisance in lieu of physically walking to the property to do the same? In addition to the convenience factor that drones provide, it gives HOAs the added benefit of having concrete, recorded evidence should the violation escalate to the level of arbitration or judicial enforcement.

From a legal standpoint, the two primary areas of law that factor into HOA drone usage are (1) privacy law and (2) property law.

Privacy

While there are numerous privacy laws and regulations, for HOA purposes, California Civil Code §§ 1708.8 (a) and (b) (collectively, the “Provision”) are the most applicable in regard to drone surveillance and enforcement. The Provision prohibits both “physical” and “constructive” invasion of privacy. Physical invasion of privacy requires the element of intentional trespass onto the land or airspace of the home (discussed further below) while constructive invasion of privacy does not require the element of physical trespass onto land or airspace.

In any event, both Provisions hold one liable for invasion of privacy when same utilizes a drone to “capture any type of visual image, sound recording, or other physical impression of the plaintiff [e.g., homeowner] engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person.” (Emphasis added.)  Ah yes, the “reasonable person” standard comes into play here as it does in almost 99.99% of standards used to dictate liability. Interpret it exactly how it sounds. If an HOA is utilizing the drone to capture a serial dog poop litterer in the community park, it certainly would not offend a reasonable person walking their dog in the park, nor would the violating individual have a “reasonable expectation of privacy” (a standard also used to adjudicate privacy suits) on common area owned by the HOA.

On the other hand, if an HOA is investigating a nuisance matter of excessive cigarette and/or marijuana smoke, can the HOA operate a drone from the common area zooming into the living room? Probably not. While one may make the argument that if the smoking activity was viewable in plain sight from common area streets (e.g., curtains wide open) that the individual has no reasonable expectation of privacy, it is likely to fail because the principle of an individual’s right and expectation of privacy within his/her home is held to an extremely high standard. Furthermore, it is best practice for HOA’s to err on the safe side of caution and avoid potential exposure to liability.

Property

In addition to looming privacy concerns, HOAs need to be aware of property laws that protect homeowners from drone usage; in particular, communities that consist of single family homes wherein the homeowner owns the airspace above the land. In the early stages of property law (also known as “common law”), the principle that controlled for centuries was “[w]hoever’s is the soil, it is theirs all the way to Heaven and all the way to hell.” Of course, this has changed over the years with the evolution of mankind and (flight) technology starting with the groundbreaking U.S. Supreme Court case United States v. Causby, wherein the Court held that homeowners owned the airspace above ground level up to 365 feet (anything above that was public domain).

Today, homeowners own the airspace 500 feet above ground level in “uncongested areas.” (14 CFR § 91.119(c).)  This is the standard generally applied to airspace demarcation in residential communities (i.e., HOA’s).  See Lacey v. United States, 595 F.2d 614 (1979); see also Aaron v. United States, 311 F.2d 790, 801 (1963).   The idea behind this is to give homeowners property rights to their parcel of land as high above it as “normal use of the land” requires. As such, unless the drone is capable of operating in excess of 500 feet above ground level (at which point no practical HOA purpose will likely be served), under very limited circumstances should a drone ever be hovering above a homeowner’s physical land or airspace.

California HOA lawyers HOAs should utilize drones to enforce violations of their governing documents where appropriate—this should be considered on a case-by-case basis. Whether it is a serial dog poop litterer or smoking nuisance matter, it is advised that HOAs that are intending on utilizing drones use sound judgment, and more so, consult with their general counsel. Keep in mind that in order to operate a drone for HOA-related purposes, the HOA will have to apply for an exemption from registering the drone with the Federal Aviation Administration (“FAA”).

From our experience, with any recording devices implemented by HOAs, it is best practice and strongly recommended for HOAs to adopt a “Surveillance Camera Policy” or “Drone Policy,” wherein rules are implemented to regulate such devices and afford protection to the HOA.

-Blog post authored by TLG Attorney, Andrew M. Jun, Esq.

Chained-Social-Media-Facebook-Twitter-YouTube-Regulations-Internet-900Like it or not, we live in the age of social media. It is undeniable and has dramatically transformed the way we communicate in every arena, including homeowners associations (“HOA”).  Information, opinions and images are broadcast and circulated at a rapid pace with little or no oversight involved.  These unfiltered transmissions over social media airwaves can have profound impacts on homeowners associations’ governance (board of directors), as well as its membership (homeowners).  Understanding the legal implications of social media use in the context of managed communities is critical to avoid conflicts, unexpected costs and legal battles.

In recent years, we have seen a myriad of lawsuits stemming from social media abuse:  In Tennessee, a homeowner faced legal action from her HOA for using the name of her subdivision on her personal Facebook neighborhood page.  In New York City, co-op residents aired their dirty laundry online, resulting in multiple lawsuits.  Elsewhere, a vacation-condominium owner sued a guest for $15,000 over negative social media comments.

It is not uncommon to find defamatory language being hurled at board members or management by disgruntled homeowners on online community forums, board members purporting to speak on behalf of the association on their personal Facebook pages, and association social media channels turning into de facto board meetings in violation of state law and governing document protocols.

These problems arise largely due to an inherent discord between the nature of social media and how community associations operate.  Association managed communities are highly regulated and restricted – indeed, their chief governing instrument is titled Covenants, Conditions and Restrictions (“CC&Rs”). To the contrary, social media regulation is grossly inadequate.  Simply put, people are free to share their thoughts and opinions without real consequences, which often leads to capricious communications.  However, people cannot do this in community associations. For instance, homeowners cannot blurt out opinions in board meetings – in fact, homeowners are often not even allowed to speak, unless given permission.

Unfortunately, the legal landscape has been quite slow to catch up with the problems associated with unbridled communication.  There are few, if any, state laws to govern the use of social media in the realm of corporate governance.  Moreover, developers who write the CC&Rs are focusing on issues like special assessments and architectural approval, not whether board treasurer Bob has the right to post his opinions on the clubhouse renovation on Twitter.

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no-kids-allowed*Asked & Answered

Asked – Our Association is seeking legal guidance regarding children playing in the common areas and driveways. Several homeowners have complained about the number of children playing without supervision.  Drivers report their concern for the children’s safety as there have been several reports of children almost hurt. The Board would like to know if they have the authority to restrict children from playing in the common areas and/or driveways? 

Answered – The short answer is that the Association would be exposing itself to a risk of liability under federal and state anti-discrimination laws by adopting a rule or policy that outright prohibited children from playing in the common areas; including the streets and driveways. This risk would extend to other rules that specifically apply to children only, as opposed to all members/residents of the community.    

Generally, an association should proceed with caution when attempting to create and/or enforce rules that specifically apply to children. Federal and state law provides that it is unlawful to limit the use of privileges, services, or facilities associated with a dwelling because of familial status (the law also recognizes other protected classes including those based on race, color, national origin, religion, sex, and disability). Familial status is generally defined as having one or more individuals under 18 years of age who reside with a parent or with another person with care and legal custody of that individual. The effect of association rules based on familial status is that families with children, and those children, are treated differently and less favorably than households comprised solely of adults.

Federal courts have found that an association engages in actionable discrimination when rules specifically target children without sufficient justification. For example, rules that restrict only children from the benefits and privileges of common areas or amenities (such as pools, parkways, streets, etc.) have been struck down as impermissible restrictions against a protected class; namely familial status.

An association pool rule that restricts children under the age of 16 from using the pool without adult supervision would be an example of an impermissible rule. An association may argue that such a rule is intended to protect children. However, it would be easy to demonstrate that many children that fall under the scope of the rule are far more proficient swimmers than many adults (e.g. junior lifeguards). However, a rule that prohibits children under 5 from using the common area spa without adult supervision would likely fare better if a legal challenge was brought because there is a clear and identifiable safety risk with children under 5, regardless of swimming proficiency. Specific adult-only swim hours would be another example of an impermissible rule.

To avoid the risk of a discrimination claim, associations should strive to craft and enforce rules that apply equally to all members and residents within a community. Facially neutral rules of general applicability are far more likely to withstand judicial scrutiny. Alternatively, if an association has a legitimate and compelling justification for a rule that only applies to children (or other protected class), the rule must be the least restrictive means to accomplish the identified goal. This is a high burden to meet, so counsel should be consulted to avoid unnecessary and costly issues down the road.

California HOA lawyers Associations should be aware that creating and/or enforcing rules that apply only to children (and other protected classes such as race, color, national origin, religion, sex, or disability) exposes an association to federal and state discrimination claims. Associations seeking to address legitimate concerns or issues, such as children’s safety, should work with counsel to create enforceable rules that steer clear of potential discrimination against protected classes.

-Blog post authored by TLG Attorney, Tim D. Klubnikin, Esq.

16106042-10158060050850114-2869680242197711700-n-1484846578*New Legislation

On July 30, 2019, SB 652 was signed into law by Governor Gavin Newsome in response to several incidents in which a homeowner’s association (HOA) asked a resident to remove a mezuzah from their unit’s entry door or doorframe.  A mezuzah is a small scroll that is affixed to the doorframe of Jewish homes to fulfill the mitzvah (Biblical commandment).  For observant Jews, this is not a choice, but rather, a religious duty.  Attempts to bar them from fulfilling this duty violated their religious freedom, argued Jewish residents.

In Connecticut, an HOA threatened to fine a resident fifty ($50) dollars if she did not remove the mezuzah affixed to her doorframe.  The HOA permitted religious displays (e.g. Christmas wreaths) on doors, but restricted any adornments from being placed on exterior walls.  The HOA argued that doorframes are considered exterior walls.

In Florida, an HOA ordered a resident to remove a mezuzah, citing its bylaws prohibiting owners and occupants from attaching, hanging, affixing or displaying anything on the exterior walls, doors, balconies, railings and windows of the building.

In New York, an HOA fined a resident fifty ($50) dollars for affixing a mezuzah to her doorframe shortly after she moved in.  The HOA cited its bylaws prohibiting residents from altering the exterior of their home without approval from the Association.  The rule included affixing of signs, advertisements or statuary.

While there were only a handful of instances nationwide in which a resident was asked to remove a mezuzah, the bill was designed to have a broader scope in protecting any displays of religious items on doors and doorframes so long as the display reflects “sincerely held religious beliefs.”  Specifically, SB 652 prohibits a “property owner” (defined to mean an HOA, an HOA board, or landlord) from adopting or enforcing any rule that prohibits the display of one or more “religious items” on an entry door or doorframe.  The bill defines “religious item” to mean any item displayed “because of sincerely held religious beliefs.”  The bill also identifies reasonable exceptions, such as allowing an HOA or landlord to prohibit the display of anything that threatens public health or safety, violates existing law, contains obscenities, hinders the opening or closing of any entry door, or is larger than 36” by 12” inches.  Also, an HOA may require a separate interest owner to remove a religious item as necessary to perform maintenance on a door or doorframe.

Prior to SB 562, federal and state law provided some protections against religious discrimination in housing, but the author of the bill believed that these protections were not sufficient enough to protect the display of religious items.   For example, the federal Fair Housing Act (FHA) prohibits housing discrimination on the basis of religion.  Likewise, the state Fair Employment and Housing Act (FEHA) makes it unlawful for the owner of any housing accommodation to discriminate against or harass any person because of the religion of that person. (Gov. Code § 12955.)  The Davis-Stirling Act, which regulates homeowner’s associations and common interest developments, contains a provision that prohibits the HOA governing documents from prohibiting the posting or displaying of noncommercial signs, posters, flags, banners, on or in an owner’s separate interest, subject to certain exceptions.  (Civil Code § 4710.)  To the extent that a “religious item” is a sign, poster, flag, or banner, one could argue that existing law already prohibits an HOA from adopting or enforcing any rule that bans the display of religious items.  But arguably there is a question of whether a mezuzah or cross hung from a door is a “sign.”  SB 562 eliminates that ambiguity by protecting any “item” which is displayed because of a sincere religious belief, whether or not it is a “sign.”

SB 652, which takes effect January 1, 2020, will likely conflict with many HOA policies, which have aesthetic and architectural rules that bar hanging anything on an entry doorframe.  According to the author of the bill, such restrictions from HOAs leave the affected people unable to freely practice their religious obligations and in some instances are forced to leave their residence and seek another place to live.  By passing this bill, California’s legislature has followed the recent trend in caselaw suggesting that the religious freedom of individuals should take precedence over the communal interests of homeowner’s associations.

California HOA lawyers Notwithstanding, it is important to note that the right afforded to HOA members and tenants in this bill is extremely limited, only applying to a “religious item” and, even then, only when the item is posted on an entry door or doorframe.  For instance, the bill would not provide protection to an owner who wanted to post a similarly-sized religious item in a window, or a door other than an “entry” door.   

-Blog post authored by TLG Attorney, Reuben D. Kim, Esq.

*New Library Article!

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Workplace harassment and hostile work environments are nothing new for management professionals.  Emotionally charged conversations can become uncomfortable and antagonistic for many managers.  Unfortunately, such dialogue frequently crosses the line from demanding direction to demeaning personal attacks.

Previously, employer liability for employee claims based on nonemployee conduct was generally limited to sexual harassment.  Effective January 1, 2019, newly adopted California law (Senate Bill 1300) lowers the burden by which California employees can bring successful harassment claims against California employers and expands the scope by which those employers may now be responsible to their employees for third party, nonemployee conduct, among other things.

Our HOA attorneys have authored a new article to generally summarize SB 1300 and to discuss its application to common interest development practice.

hoa laws The article, entitled “Workplace Harassment in a HOA Environment,” is available for download from our firm’s library. You can access the article by clicking here.

agriculture-berries-bunch-760281-e1551829548999In Eith v. Ketelhut (2018) 31 Cal.App.5th 1, a homeowners association featuring estate properties where members maintain fruit orchards and vineyards yielding fruit that can be made into wine and offered to the public for sale required the Board of Directors (“Board”) to determine if sale of products made from fruit produced on the property is a prohibited business or commercial activity under the CC&Rs. Looking to the purpose of the prohibition – to protect the residential character of the community – the Board examined whether the activity negatively impacted the residential character of the community.

In 2003 the Ketelhuts received approval from the Los Robles Hills Estates Homeowners Association’s (“HOA”) Architectural Committee (“Committee”) to plant landscaping on their property which included a vineyard of 600 plants. The Committee approved the Ketelhuts’ vineyard as it had approved other members’ avocado and fruit trees. The Ketelhuts did not mention using the grapes to make wine for sale. Five years later in 2008 the fruit was harvested and removed to an off-site winery to be made into wine. The Ketelhuts commenced a wine business in 2009, obtaining the necessary licenses, and began selling wine in 2010 over the Internet to the public and local restaurants and hotels. The Ketelhuts characterized the vineyard as a hobby, but they filed forms with the IRS claiming the vineyard as a “business.”

Eith and other neighbors demanded the Ketelhuts cease operating a commercial vineyard, so the Board investigated the Ketelhuts’ vineyard operation. The Board determined that the vineyard did not constitute business or commercial activity prohibited by the CC&Rs, because there was no negative impact on the community. No wine was produced or stored on the property, there was no tasting room drawing retail traffic to the community, and the wine was sold over the Internet to the public and local restaurants and hotels and shipped from an off-site warehouse.

Eith and other neighbors sued the Ketelhuts for operation of the vineyard as a prohibited business or commercial activity in violation of the HOA’s CC&Rs. The trial court elected not to decide whether the operation of the vineyard was a prohibited business or commercial activity, but to find in favor of the Ketelhuts by applying the rule of judicial deference adopted by the California Supreme Court in Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249 (“Lamden”) to the Board’s decision that the vineyard was not a prohibited use based “upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members.”

The neighbors appealed the decision in favor of the Ketelhuts to the California Court of Appeal, which confirmed the trial court’s application of the judicial deference rule in the Lamden case stating, “Common interest developments are best operated by the board of directors, not the courts.” The Court of Appeal further concluded that the Board correctly interpreted the CC&R prohibition of business and commercial activity. The purpose of the prohibition was to protect the community’s residential character; therefore, the prohibition does not encompass activity that has no effect on the community’s residential character.

California HOA lawyers The Board was in a much better position than the courts to evaluate the vineyard’s effect on the community and found that the residential character of the community was not impacted as a result of the growing and picking of the grapes on the property. No business or commercial activity of making and selling wine occurred on the property and offering the wine for sale over the Internet did not transform use of the property into a prohibited business or commercial activity. At all times the operation of the vineyard was fully consistent with residential use.

-Blog post authored by TLG Attorney, Terri A. Morris, Esq.

anti-SLAPP*Unpublished Opinion

The recent unpublished opinion of Chemers v. Quail Hill Community Association et al. (2018) shines some light on the oft-misunderstood California Anti-SLAPP statute and its effectiveness as a defense for actions by a homeowners association’s board of directors.  The Fourth District California Court of Appeal held that certain actions by the board in a dispute with a director were not in furtherance of the right of free speech or petition as to be protected by the anti-SLAPP statute.

Plaintiff Evan Chemers (“Chemers”) was a member of the board of directors for defendant Quail Hill Community Association (“Quail Hill”), a planned unit development located in Irvine, California.  A series of disagreements and escalating tension between Chemers and other members of the board resulted in the board taking affirmative steps to remove Chemers from the board permanently.  In June 2016, the board proposed a resolution to create an executive committee consisting of all board members except for Chemers, and in July 2016, the board proposed a resolution to declare Chemers’ board seat vacant on the ground that he did not meet the member-residency requirement.  Chemers was not afforded an opportunity to present any evidence of residency, address the board, or have his legal counsel present when he was formally removed.

In October 2016, Chemers filed a lawsuit against the association and other directors, alleging eight causes of action including breach of governing documents, breach of fiduciary duty, negligence, declaratory relief, and various violations of the Civil Code and Corporations Code.  In response, the defendants filed an anti-SLAPP motion seeking an order striking the complaint and the eight causes of action within it.  The trial court granted the moving defendants’ anti-SLAPP motion as to six of the eight causes of action.

Chemers subsequently appealed the trial court’s decision, and the Court of Appeal concluded that the trial court erred by granting the anti-SLAPP motion as to the claims alleged against Quail Hill for breach of contract, violation of Civil Code section 5850 et seq., and for two counts of declaratory relief.  The Court of Appeal reasoned that none of those four causes of action arose out of protected activity – whether speech or petitioning activity – within the meaning of the anti-SLAPP statute.

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BikeExhaust-e1534522784547*Asked & Answered

Asked – We have several vehicles that are “extremely loud” due to their exhaust systems. Even with all windows and doors closed and these vehicles 1/2 way across the complex, there is NO PROBLEM hearing them when they start them. They even set off car alarms near them. Can we ask them to address the noise they cause?

Answered – Noisy neighbors are a frequent occurrence in common interest developments, especially in dense housing communities (e.g., condominiums). And while the California Supreme Court has indicated that individuals “in a community must put up with a certain amount of annoyance, inconvenience and interference,” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937), that does not extend to situations which have a substantial impact on residents’ use and enjoyment of their separate interests.

Indeed, residents of a common interest development are generally entitled to the peaceful use and enjoyment of their respective separate interests as well as the common areas. Ensuring such peaceful use and enjoyment is what underlies many of the provisions set forth in an association’s recorded Declaration of Covenants, Conditions and Restrictions (“CC&Rs”). Residents purchase or rent their separate interests within an association in reliance on those restrictions being consistently and faithfully enforced.

The peaceful use and enjoyment to which residents are entitled is typically reflected in the association’s CC&Rs under the heading “use restrictions.” The following is a common example of a use restriction preserving the right of residents to the peaceful use and enjoyment of their separate interest:

No Condominium shall be used in such a manner as to obstruct or interfere with the enjoyment of occupants of other Condominiums or annoy them by unreasonable noises or otherwise, nor shall any nuisance be committed or permitted to occur in any Condominium.

This provision, alone, can serve as a basis to prevent residents from operating vehicles in the community that are “extremely loud.” However, some associations go a step further and adopt operating rules identifying what constitutes an “unreasonable” noise. For example, an association may adopt an operating rule prohibiting residents from operating vehicles that exceed a certain decibel level; or, more commonly, adopt an operating rule prohibiting residents from operating vehicles that produce “excessive” noise thereby providing the Board of Directors with the broad discretion to determine what constitutes “excessive.”

hoa laws In sum, the ability to regulate conduct or activities that constitute a nuisance is well within the scope of authority granted to an association. This power extends to prohibiting residents from operating extremely loud vehicles within the community. Associations facing such issues can and should commence enforcement efforts to remedy the violation, and, if the association has not done so already, adopt operating rules addressing such conduct. 

Content provided by TLG attorney Matthew T. Plaxton, Esq.

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