Construction and Nuisance in California During the Stay-at-Home Order

By Steve Roseman, Esq.

On March 19, 2020, California Governor Gavin Newsom signed Executive Order N-33-20 directing all individuals living in the State of California to stay at home except as needed to maintain continuity of operations of essential critical infrastructure sectors (“Order”).

In accordance with this Order, the State Public Health Officer designated a list of “Essential Critical Infrastructure Workers” to enumerate sectors of workers considered “essential” and thereby exempt from the stay-at-home order.

The effect of this Order has been an unprecedented number of Californians now telecommuting from home workspaces in the recent days. But with this large segment of California residents telecommuting and therefore being home during regular business hours, novel potential legal issues have arisen.

One such issue is due to the fact that workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences have been designated as “essential” by the State Public Health Officer, and therefore, residential construction work continues. With this work continuing, a potential issue has arisen as to whether or not the construction work – which normally would have less of an effect on neighboring homeowners under normal circumstances – is now something that could be considered a nuisance as many that were not before, are now home to be affected by the noise that is associated with construction work.

NUISANCE

Civil Code Section §3479 defines a “nuisance” as: “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or [anything that] is indecent or offensive to the senses … as to interfere with the comfortable enjoyment of life or property … or any public park, square, street, or highway.” The legal definition is very broad.

In the case of Monks v. City of Rancho Palos Verdes, the Court in discussing what constitutes a nuisance stated that the interference must be “substantial and unreasonable.” Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302 (cross-citations omitted).

The Court in Monks further established an objective standard for which a nuisance is to be evaluated by articulating that a nuisance exists only if the conduct would be substantially and unreasonably offensive or inconvenient to a normal or average person. Id.

In addition, “To determine whether an invasion of a person’s interest in the use and enjoyment of his or her land [is] substantial … the degree of harm is to be judged by the objective standard of the effect the invasion would have on persons of normal health and

sensibilities living in the same community.” Restatement (Second) of Torts § 821F.

Accordingly, a nuisance does not necessarily exist because a person claims an act or condition constitutes a nuisance. Extraordinarily sensitive people may claim a “nuisance” exists when an objectively normal or average person would not.

POTENTIAL ISSUE RELATED TO THE ORDER

While on its face, it may appear easy to assert that the noises commonly associated with construction would constitute a substantial and unreasonable interference with the enjoyment of property, and such noises would be substantially and unreasonably offensive or inconvenient to a normal or average person – particularly when a person is attempting to complete a normal work day from home – there are other factors to be considered due to the irregularity of the situation.

In the majority of construction projects there is an underlying contract. The contract will contain any number of provisions, possibly including those dictating the duration of the project, and a projected date of completion. Any delays in a construction project can have a negative effect on all parties involved. On the one hand, if it is an individual person whose residence is under construction, that person may be displaced or inconvenienced while the project is ongoing. Or if a portion of a homeowner’s association common area is under construction, multiple – and in some cases all – homeowners may have an interest in having the project completed as soon as possible. On the other, not completing the project on time may subject a contractor to penalties and possible breach of the construction contract, as well as any extra costs for labor and other items.

What we see is a novel balance of equities that must be considered when addressing a situation in which a homeowner potentially complains about the noises associated with a construction project on the basis of nuisance, when the noises occur during normal business hours. While a nuisance complaint is initially a neighbor-to-neighbor issue, if in the case of a homeowner’s association, the complaints are submitted to the board of directors (“Board”), the Board must make multiple considerations when deciding on how to respond. One consideration is that taking action against a single resident for whom the construction project is ongoing could interfere with the contractual relationship between the homeowner and contractor, as attempting to restrict construction during business hours would essentially leave no other time for construction to continue, ultimately leading to a delay in the project finishing, and causing damages to either party to the contract, to which the Association may be sought to be held liable. Another consideration is that the construction project noise may render it virtually impossible for a neighboring resident to be able to run their business or complete their required work tasks, when they have no other option but to work from their residence due to the Order.

CONCLUSION

Because this type of potential situation is one that has not been fully explored and tested due to it being a product of unprecedented circumstances, a Board must be sure to consult the advice of legal counsel before acting, in order to figure out how to best address the situation while avoiding potential liability for the Association. Ultimately, the resolution of these issues will likely require the Board to act reasonably and balance the hardships on the parties to protect the interests of each side as much as possible.

Steven A. Roseman, Esq. is the Managing Partner of Roseman Law, APC. Roseman Law has clients in the Coachella Valley, Los Angeles, Orange County, Inland Empire, San Diego and Nevada. You can reach Steve at roseman@roseman.law or by phone at (760) 760-2000.