QUESTION. My neighbor installed a massage bed which sends noise and vibrations into my unit and keeps me awake at night. The association has not been very supportive as they do not feel it is a nuisance. Are there any requirements for the association to take action or do I need to take action directly with the unit owner?
ANSWER. If the noise from the bed is such that it constitutes a nuisance, both you and the association may take action against the owner for violation of the nuisance provision of your CC&Rs. In an unpublished opinion, the California Appellate Court ruled that an association acted reasonably when it required an owner to remove his hot tub because noise from the tub constituted a nuisance. Pacific Ranch Homeowners Association v. Murray (2008).
Objective Standard. To be a nuisance, the noise must be significant enough to unreasonably interfere with the quiet enjoyment of your property. If your CC&Rs provide an FIIC rating for sound transmission between units, an acoustical consultant can test the noise levels. If they fall below those set in your CC&Rs, the matter is closed. If the noise is above those levels, then there is an objective determination that your neighbor is creating a nuisance.
Subjective Standard. If your CC&Rs do not have an objective standard, your board can subjectively determine whether a nuisance exists. From your unit, the board (or a representative) can listen to the noise and vibration. If the board makes a good faith determination that it does not rise to the level of a nuisance, no further action is required by the board. If you disagree with the board's decision, you still have the right to initiate legal action against your neighbor.
Corrective Action. If the board finds that the noise and vibration are excessive, it can require that the owner abate the nuisance. That might require putting the bed on rubber cushions and muffling the motor. If that is not successful, the board can require the owner to cease using the vibrating feature of the bed. If the owner refuses, the board can hold hearings and fine the owner every time she creates a nuisance. If the fines do not curb the nuisance, the board can initiate legal action against your neighbor. In addition, your board can specifically prohibit massage beds in the Rules & Regulations. To make the prohibition stronger, the membership can amend the CC&Rs to ban such beds.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.