NEIGHBOR TO NEIGHBOR DISPUTES – ARTICLE BY DAVID A. LOEWENTHAL, ESQ.

Posted by AccordPM on August 24, 2011

The Top Ten List

As more people move into common interest developments, neighbor to neighbor disputes will become an increasingly important issue for both Homeowners Associations, its Board of Directors, management companies, lawyers and most importantly, the actual homeowners themselves. Living within a common interest development largely brings significant benefit in value to its residences including, but not limited to, maintaining aesthetic within the community, preserving architectural integrity, and most importantly preserving and hopefully increasing property values. However, whether or not you live in a condominium project or a planned unit development, the ability of homeowners to “get along” with their neighbor, what rights neighbors have as to each other as well as the rights and obligations of the Board of Directors may have with respect to neighbor issues have become increasingly more important and potentially volatile.

Set forth below are ten (10) general areas and/or issue existing between neighbors and Homeowners Associations, as well as examples and possible mechanisms to resolve neighbor disputes. This list is by no means full and complete in and of itself. However, it will provide the reader with a general overview of issues that exist within communities and the problems they may create.

1. What right does a homeowner have against a neighbor who may be in violation of the Association’s governing documents?

At the outset, if a homeowner believes that a neighbor is violating the Association’s governing documents including the covenants, conditions and restrictions, bylaws or rules and regulations several items must be reviewed and considered. First, does the neighbor have a right to enforce these documents directly or is it an exclusive right of the Association to enforce. Generally issues such as nuisance, view protection, etc. can be enforced by both the Homeowners Association via its Board of Directors as well as from a neighbor, i.e. there is a non exclusive right to enforce. Assuming that the owner has the right to enforce the issue the next issue is how to best deal with this issue. Generally speaking, since both the aggrieved party as well as the aggravating party are neighbors, it is my recommendation that if this can be resolved in an informal manner it should in fact be accomplished this way. Specifically, discussions amongst rational neighbors generally should alleviate any problem. However, for those neighbors who either are unwilling to remedy the problem or unable to remedy the issue voluntarily, the aggrieved homeowner could seek the intervention of the Homeowners Association Board to also attempt to enforce compliance. If the Association is charged with such duties, a failure to take action
could be a breach of the Board of Directors duties and obligations. This would have to be viewed on a case by case basis.

If the neighbor is unwilling to comply with a legitimate request that is creating the dispute, the aggrieved homeowner may make a demand for Alternative Dispute Resolution (ADR) pursuant to Civil Code. This section generally states prior to the filing of a civil lawsuit pertaining to a dispute regarding the interpretation of the Associations governing documents, a breach thereof, declaratory relief or injunctive relief and the amount in controversy is less than $5,000, the aggrieved party, prior to the filing of a civil action must make a demand for ADR to the aggravating party. ADR allows for either mediation, binding arbitration or non-binding arbitration. An aggravating party, when served, has thirty (30) days in which to either accept or reject or not respond to the request. A non-response is the same as a rejection. If there is a non-response or rejection, the aggrieved party may then proceed forward in filing a civil action.

If the parties actually proceed to ADR, and there is no resolution, assuming that it is either mediation or a non binding arbitration, then the aggrieved party can then proceed forward with the filing of a lawsuit. Obviously, by proceeding through either ADR and ultimately litigation, the costs associated with this prosecution and defense can be significant, though the governing documents will likely allow a prevailing party in any such civil litigation to the recovery of reasonable attorneys fees and costs. Proceeding with a lawsuit should be a last resort and only taken if no reasonable resolution can be reached on a more voluntary level.

2. The use of fines by the Association:

Sometimes the only way to obtain a violating neighbors attention is to threaten and sometimes carry out either discipline and/or a fine. Homeowners Associations should include within their rules and regulations a written fine policy that specifically spells out for all of the owners the ramifications for violations of the Association’s governing documents. Generally, but not always, such written policies will provide a warning letter for a first offense and then a stepped up fining policy for each continuing violation. It should be noted that fines are not assessments and therefore cannot be the subject of a lien or foreclosure action. However, an Association can file an action against an owner in small claims court or superior court to collect on such fines.

Although a neighbor does not have the right to issue fines against an offending neighbor, the Board of Directors clearly does have that right as long a they are in compliance with Civil Code. This section states that prior to the issuance of a fine or other disciplinary action, a Homeowners Association must provide at least ten (10) days written notice to the offending homeowner advising them that the Board will be meeting on a specific date, time and place for the purposes of determining whether or not discipline or a
fine will be instituted against the neighbor for a specific violation. The offending homeowner has a right to attend the hearing and present any information they believe to be relevant to the Board setting forth why such disciplinary action should not be taken. Within fifteen (15) days of the hearing, the Board must provide a written notification to the offending homeowner as to the Board’s decision. The Board does not have to provide continuous notices and offers of hearings to subsequent violations of the same issue. An example, if the issue is a neighbor playing excessively loud music and a hearing is conducted which leads to an issuance of a fine and the conduct continues in the future, the Board can continue to issue new fines without having a second hearing. Conversely, if the sound issues ends but the offending homeowner commences a violation of a separate and distinct rule then that would be the cause for a new notice, hearing and written position.

3. View disputes between neighbors:

Under California law, view rights are not protected, unless you are located in certain scenic corridors that may be protected by City and/or State ordinances or, more generally, the view is protected via the Associations governing documents. Barring either specific localized City/State protection or the governing documents, view protection is not deemed a protected right under Colorado law.

Assuming that your Association does in fact provide view protection, then the issue is whether or not it is an absolute protection or a partial protection based upon reasonableness. Specifically, certain Association’s governing documents will provide for an absolute protection, i.e. that there can be no impairment or obstruction of view caused by one neighbor against another neighbor. More generally, view protections are based upon a premise that no unreasonable obstruction may be created from one neighbor to another neighbor. In the latter case, partial obstruction may be allowed as long as such obstruction is not considered to be “unreasonable.” Obviously, this creates a subjective standard as to what actually constitutes an unreasonable obstruction.

Unfortunately, the unreasonableness standard, since it is in fact subjective in nature, can be the basis for contentious issues including litigation. As an example, a prima facie issue would be what was the legitimate belief that an owner would have with respect to the protection of their view for all portions of their residence as well as their lot and what actually would constitute a view. As an example, would the view of a next door neighbors house be considered a view that should be protected and not blocked by the planting of trees, shrubs or bushes? Is a view limited to what would generally be considered scenic views such as mountains, valleys or bodies of water? If a view is partially obstructed, is that considered to be an unreasonable obstruction? All of these subjective standards can create contentious issues that can lead to litigation. Again, a way to possibly resolve these issues would be to have neighbors agree prior to either construction of homes or landscaping as to specific locations, height, material use, etc. Generally certain of these issues may be set forth within the Association’s governing documents and architectural standards; however, when such items are silent, agreements between neighbors in advance
of construction or planting can avoid later litigation.

4. Neighbor to neighbor noise disputes:

Noisy neighbors are generally one of the most frustrating and highly contentious issues that develop between neighbors. Though this can occur in single family homes, it is generally most apparent in attached dwellings such as condominium units where noise may be flowing through both floors, ceilings and walls. Generally attached condominiums and townhomes will have certain standards set forth within their governing documents including the type of flooring material that can be used as well as that which is barred.

In addition to attempting to designate types of flooring material, the use of the unit in an attached dwelling can also create problems as to use for both an aggrieved neighbor as well as the aggravating neighbor. Specifically, what bothers or effects one neighbor may be different for another. Walking on the floor may be an annoyance to a downstairs neighbor but the actions of the upstairs neighbor is not in and of itself unreasonable. This would be different than banging on the walls, yelling, screaming, playing excessively loud music or television, etc. Again, subjective opinions largely come into play in these issues as to whether or not the actions of one neighbor are creating an unreasonable annoyance and nuisance to another neighbor.

Noise issues can be evaluated on a scientific level through acoustical tests in order to attempt to determine whether or not the impact for floor, ceiling or airborne sound meets minimum sound standards required by the municipality. This of course does not take into account issues such as banging on the walls, which clearly would go beyond normal use of the unit.

Generally, governing documents will also include a section pertaining to “nuisances” and state that a neighbors actions cannot be such that could lead to an unreasonable annoyance, disturbance or offensive activity that unreasonably inhibits another neighbor from using their property. Again, this is a subjective analysis.

5. Neighbor to neighbor dispute regarding parking issues:

In developments where there is designated parking within a garage or an assigned parking space, parking issues generally are not significant, with the exception of guest parking. However, where the Association streets are private, but street parking is allowed, disputes often arise as to one neighbor consistently parking their vehicle in front of another neighbor’s residence. It is not that one neighbor has exclusive control over the street parking in front of their residence; however, homeowners generally feel that they have an interest in who should be able to park in front of their residence. Again, this is not necessarily a legal issue, but rather it is a sense of “extended control/ownership.” Neighbors will often tell an aggravating neighbor to park in front of their own house and not in front of their house. If street parking is allowable and the “aggravating neighbor” is not leaving their vehicle for a time period in excess of that allowed by either the governing documents or local municipal codes, then the aggrieved party may be annoyed but probably has no right or recourse. However, if the aggravating party is leaving their vehicle in front of the house for a period longer than allowed by the governing documents or municipal ordinances that neighbor would have the right to proceed forward against the violating homeowner.

6. Neighbor to neighbor disputes for water damage between units:

A serious problem effecting neighbors is water intrusion. Generally this issue arises between neighbors in a condominium or townhome setting where there are attached walls and ceilings though, in single family home communities, irrigation water between neighboring lots can also be a source of confrontation.

With respect to attached dwellings, there is a myriad of items that can create water intrusion between units including, but not limited to, washing machine hoses, tub/shower combinations, toilets, dishwasher lines, ice maker water lines, etc. In some instances, the water intrusion is catastrophic and known immediately, as is the case of a ruptured washing machine hose; whereas in other instances, if it is a slow leak it may take an extended period of time to manifest itself into damage. In the current state of mold litigation, the issue is not only the damage to the drywall, flooring, etc but also the costs associated with mold remediation, which can exponentially increase costs.

Generally, if the item that is the source of the water is a separate interest item, such as a washing machine hose, angle stop, etc. then the owner in control of that separate interest item would be responsible for the costs associated with the damage flowing from their unit. Conversely, if the source is a common area source such as a common area pipe, then the costs associated with the remediation and repair would be borne by the Homeowners Association.

It is important to note that in most instances, the drywall on the ceiling and walls is considered to be common area; therefore, even if the neighbor refuses to pay for the repair to the drywall, the aggrieved homeowner may have a legitimate claim against the Association since it is now a “common area” that has been damaged and which the Association is responsible to repair, maintain and restore. The Association would also have a right to proceed back against the aggravating homeowner and/or their insurance carrier for reimbursements of the costs incurred.

7. Neighbor to neighbor disputes regarding landscaping:

Issues with respect to neighbors landscaping is typically more of an issue in a planned unit development with single family homes, verses attached dwellings. In such instances, the Association’s governing documents generally set forth the fact that any exterior improvement or alteration, including planting and landscaping must first be submitted via
plans and specifications to the Board of Directors and/or Architectural Review Committee (ARC). In many Homeowners Associations, specific restrictions maybe set forth within their documents including the type of landscaping that is to be planted, the height that the trees and bushes are allowed to grow, set back issues with respect to landscaping, etc. Prior to undergoing landscaping of your home, a homeowner should carefully review the governing documents to ensure that they are in compliance.

Tempers often flare when the landscaping planting either impacts a neighbors view which, as stated above, is only relevant if the Association’s governing documents provide view protection or the residence is located in a specific scenic corridor where municipality may protect certain views. In addition, trees and heavy shrubby planted at the property line at block walls may also be an issue if the root system causes damage to such walls.

Generally, homeowners should attempt to work out these issues via obtaining permission or an agreement between neighbors prior to the commencement of significant landscaping. Again, whether or not actual consent of the neighbors is required is based upon the governing documents.

If a dispute arises then, as stated above, neighbors can make demands to proceed with Alternative Dispute Resolution, which, if that fails, would allow the parties to seek judicial intervention.

8. Neighbor to neighbor disputes involving tenants and guests:

Frequently, disputes arise between neighbors when one owner is either renting their residence or consistently entertaining guests that are violating the Association’s rules. It is important to remember that violations by tenants and/or guest are ultimately the responsibility of the owner regardless of whether they had actual notice of the violations as they were occurring.

As such, if an owners tenants and/or guests are violating the Association’s rules and regulations to such an extent that is impacting the neighbors ability to reasonably use and occupy their property, then that neighbor would have a right to proceed forward with an ADR demand and, if not successful, proceed with litigation. In that same regard, in the case of a continuing nuisance, the Association can also step in to seek such compliance to seek a judicial remedy for such breaches. Again, such claims would be against the owner of the unit since they are bound to comply with the Association’s governing documents. It is not a viable defense for an owner to simply say that he cannot control his tenants or his guests since he has a contractual obligation to do just that and to ensure that his tenants and/or guests do not adversely impact or violate rules of the community in which they are visiting or residing.

9. Pet issues:

A significant issue involving neighbors pertains to pets and most notably dogs. These disputes can range from barking dogs; dogs running loose without a leash; and the ever popular dog “poop.” All of these issues can be the basis of much controversy between neighbors as well as the Association with an offending homeowner. In recent years, laws have been passed providing certain protections to owner of pets with respect to the rights to own a pet if the Associations documents have been recently amended, although reasonable limitations can be adopted for weight, size, type of pet so as to avoid dogs with potentially dangerous propensities, etc. Pet ownership does not allow any owner simply to allow their pet to do whatever it wants whenever it wants. Leash laws do apply in most municipalities, as do requirements to clean up after your dog, etc. Certain of these violations may not only be a violation of the Association’s governing documents, but also violations of City ordinances.

If a neighbor continuously violates the rules involving their pets, not only can the aggrieved homeowner go to the Board of Directors to seek help, the Board will likely need to be proactive especially if it involves dogs off their leash because it can create a danger issue. The aggrieved homeowner can also contact the local animal control so they may intervene with the violating homeowner.

10. Conclusion on neighbor disputes:

Again, the above represents many types of events that create disputes between neighbors, though it is clearly not an exhaustive list. Attempts to work things out amongst neighbors is clearly the best approach to settling disputes; however, if such reasonable means are unsuccessful, then an aggrieved neighbor should pursue Alternative Dispute Resolution pursuant to Civil Code  and if that fails and the aggravation is of such a significance that the homeowner can no longer tolerate it then the courts are open to them.

Neighbors should always recall that they are living within a Homeowners Association community and as such they are conventing to be bound by certain restrictions and rules. If such restrictions and rules are not acceptable to a homeowner then possibly living in a homeowners association is a not a good choice for them.

- To view the original article, click here -

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