PLAYING REF?

The association’s role in neighbor to neighbor disputes.

By Sharon Glenn Pratt, Esq. and Patricia A. Wendleton

It is generally not an association’s job to police relationships and enforce friendships in the neighborhood. There are times, however, when a dispute between neighbors legally requires involvement and direct, prompt action by the association.

NUISANCES

If a dispute concerns complaints about things such as noise, smoke, or odors, it may constitute a nuisance. Virtually all association CC&Rs prohibit any activity that constitutes a nuisance or unreasonably interferes with the use and enjoyment of a home or common area. California law defines a nuisance as anything that is injurious to health, is indecent or offensive to the senses, or is an obstruction to the free use of property. (Civ. Code § 3479.)

Neighbors may proceed directly against one another to enforce the association’s governing documents, but the association itself has a duty to enforce the governing documents as well. Boards have tools which are unavailable to individual owners, such as fines, assessments and suspension of privileges. The board should use its tools to intervene before the problem escalates. Duffey v. Superior Ct. (1992) 3 Cal.App.4th 425. This not only protects the association from liability, it often prevents litigation altogether, including the likelihood of the association being named as a party in the litigation between neighbors.

When the dispute involves a rules violation, such as crowding out the other neighbor’s parking spot or leaving a dog off leash, the board must enforce the rules, and do so uniformly. Starting with a warning, and stepping up to fines and other disciplines if necessary, the board can impose discipline rather than leaving it to the neighbors.

DISCRIMINATION AND HARASSMENT

Because homeowner associations are considered “housing providers,” subject to both California and federal fair housing laws and the Unruh Act, boards must get involved in allegations of discrimination or harassment, if it relates to a person’s membership in a protected class under the law. The Fair Housing Act’s (FHA) protected classes include race, color, religion, national origin, sex, disability and familial status. The California Fair Employment and Housing Act (FEHA) provides additional classes, including sexual orientation, gender identity or expression, marital status, medical conditions, ancestry, and age.

The California Code of Regulations, which provides for the administration and enforcement of FEHA, enacted new regulations effective January 1, 2020. The new regulations include a regulation which makes an association directly liable for “[f] ailing to take prompt action … to correct or end a discriminatory housing practice by a third party … “when it knew or should have known of the discriminatory conduct and had the power to correct it.” (2 CCR §12010(c) (emphasis added).) The regulation specifically provides that governing documents are a source of power to correct or end a discriminatory practice. This duty exists even when the association has no involvement in the discriminatory practice. It is important to note that the duty exists even when the board has no direct notice of the problem, if the board should have known.

Boards have tools which are unavailable to individual owners, such as fines, assessments and suspension of privileges.

The federal law includes a like regulation which requires prompt action to correct and end a discriminatory housing practice. The power to take prompt action depends on the extent of the person’s right to control or any other legal responsibility the person might have with respect to the third party’s conduct. (24 CFR 100.7(a)(iii).) The federal regulations include homeowner associations as housing providers subject to the regulation.

When discrimination is because of a person’s mental disability, it is particularly difficult for the association to intervene. A daunting but not uncommon example occurs when a hoarding resident keeps his/ her unit in such an unsanitary condition that it becomes a breeding ground for pests, and the infestation spreads to neighboring units and causes horrible odor. Not unexpectedly, an affected neighbor can become so frustrated with the situation that he/she disparages the mentally disabled owner or tenant, lashes out, or worse. The mental health disorder of the offending neighbor may prevent that resident from ever remedying the situation as a reasonable person would, so typical warnings and fines are not likely to be enough. Not only must the association promptly intervene to stop the discrimination, it must also enforce its governing documents against a verified nuisance. The law requires the association to accommodate the disability, but also to enforce the governing documents, as appropriate, regarding the nuisance and any resulting damage. This creates a difficult balancing act for the board.

Harassment and discrimination may also occur when an owner has a bias against the characteristics of a particular protected class, such as race. When a neighbor is complaining about another neighbor or turning them into the board for violations, it may not be readily apparent that the constant negativity is stemming from an illegal bias. The board must be ever vigilant regarding the possibility of things like racial bias being behind neighbor disputes of all sorts. In such cases, the board has a duty to promptly investigate, and to take action to end the discrimination.

Sharon Glenn Pratt is an attorney with Pratt & Associates, APC specializing in litigation, real estate law and homeowners association law. She’s based out of Los Gatos and has worked in the industry for 35 years.

Patricia A. Wendleton also is an attorney with Pratt & Associates, APC specializing in insurance, transactional and litigation law. She’s based out of Los Gatos and has worked in the industry for 35 years.