Real Estate & Property Law

More on Noise and Renters-A Pesky Subject in HOAs and Condos

I probably get as many emails on noise issues than any other subject (except maybe for dogs). Anyway, there are all kinds of variations. This one has to do with renters, teenagers, and nose-thumbing, in a manner of speaking.

Here is the email:

"My husband and I own a condo and below us lives a family of five. For the past three years the owner [leaves for an extended vacation] and leaves his college age niece and nephew at home. They play music so loud during the day that it will shake the pictures on our walls and have had quite a few parties where we have had to call the police due to city noise violations and we are unable to sleep.

All of the above breaks the rules of our HOA, so they have been fined. When we go down to ask the niece and nephew to turn the music down, they refuse. The owner will not respond to our HOA and claims there is no one in the unit so the noise is not from them. The niece has been especially bad now that her family thinks the fines can't be collected. Our HOA says that litigation is our only option, but is it possible for the HOA to take them to small claims for the fines and hopefully change their behavior? It seems that HOA fines and rules are pointless if they can't be enforced."

Yes, it is possible for either the HOA or the offended owner, or both, to take the owner with the offending resident relatives to small claims court. The offended owner could also name the neice and nephew as defendants too, if one could get the names. The claim would be public and private (per the CC&Rs) nuisance. Assuming what this writer says is true, and there is no convincing counter story, a small claims court referee or judge might have a few choice words for the owner, neice and nephew. An individual can sue in small claims for up to $7500 in damages. An association can sue for the fines. The claim of nuisance is personal to the party disturbed. Nuisance damages are hard to quantify, but the more eggregious the claims, and the better the proof or more convincing the story ("he said, she said" can get dicey), the more likely the plaintiff (person bringing the claim) is to recover some monetary damages. Even if there is no damage award, or just a minimal one (sometimes a hearing officer will send a message but award only $1), dragging the offending parties into court may have some positive effects. They won't like it.

As for bringing the association into such a lawsuit, either by pushing it to sue as a plaintiff, or naming it as a defendant, either is a judgment call. An offended owner can do the latter. But no one can force the HOA to sue in small claims if the HOA is not willing to bring a claim against the owner for the fines. If the offended owner so desires, he or she could name the HOA as a defendant too - and the claim would not be for nuisance but for failure to enforce the CC&Rs. Bringing the association in would give it a chance to make a cross claim against the owner (assuming a true account of the facts) for the fines already imposed. But the association may not sue the actual "sh_t disturbers" as the HOA does not have a legal relationship with them. And the Board may not appreciate being brought into the fray. Depending on what kind of message an owner wants to send to the association, and how realistic or assertive the association has been in addressing the violations, it may or may not be to the advantage to involve the association as a defendant. Hopefully, it would agree to file a complaint. The two matters with the same defendants could be heard together. Bringing in the HOA as a defendant would be a judgment call. It is not necessary.

Full post as published by California Condo & HOA Law on June 04, 2010 (boomark / email).