Reader Questions - Neighboring Nuisance Issues

Mr. Richardson,

I own and live in a condo complex. Secondhand smoke from neighbors drifts through my unit even with windows closed. I have repeatedly told the smokers that smoke on the patio, that it bothers me and that it’s a nuisance and that keeps me from quiet enjoyment of my unit. I have asked the smokers to smoke away from the building. What rights do I have? What can I do to prevent secondhand smoke in my home?

M.B., San Diego

Dear M. B.,

Cities in California are increasingly imposing complete smoking bans in attached residences, such as in Pasadena, for example. An increasing number of associations are also adopting their own rules or restrictions on smoking. Most CC&Rs already contain a general prohibition against activities which are a nuisance to neighbors.

I really hate to see neighbors suing neighbors, and this is a great example of a situation in which internal dispute resolution processes may help. Under Civil Code 5905, all associations are required to have a procedure by which neighbors can work out their disagreements directly, before they ripen into expensive and stressful legal matters.

Hopefully your neighbor and you can reach some compromises to help you both to live in peace.

Thanks,
Kelly

Dear Kelly,

What recourse does a common interest development have in rectifying prior illegal construction when a condo is sold? Our CC&Rs state no one above the first floor is to install anything other than carpeting in the living room and bedrooms. However, several owners covered their floors in tile or hardwood without going through the proper channels to even have the variance considered by our Architectural Committee or the board. Several of these units have since been sold without the situation being rectified.

Does the Board just ignore this infraction of the rules when it is brought to its attention? One new owner wants to have hardwood floors replaced with a better quality of hardwood and asked for Board approval. Can the Board refuse this request and order the new owner to put down carpeting?

J.C., Rancho Palos Verdes

Dear J.C.,

In wood frame multi-story buildings, some amount of noise is to be expected from upper neighbors, but if all developers had the foresight to ban hard floors above the first floor, it would reduce so many problems and disputes. Your association is fortunate to have such a prohibition in CC&Rs. Either the association or an individual homeowner may enforce CC&Rs, under Civil Code 5975. Some associations have a hard floor ban only in their rules, and per Civil 5975(b), only associations can enforce rules.

Associations (or homeowners) have five years to sue for violation of covenants, under Code of Civil Procedure 336(b). In the event the violation is not discovered until later, the running of this time limit might also start later, depending on the circumstances.

If someone bought a home with an existing violation of the CC&Rs, the association may still pursue the new owner (and the new owner may have a need to talk to their previous owner) to have the violation corrected.

The facts can change the application of the legal rules in this area, so the HOA’s legal counsel should be consulted for advice on this. Hopefully these general principles are helpful.

Thanks,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.