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Public Nuisance. A nuisance is broadly defined as "[a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property...." (Civ. Code § 3479.) A public nuisance is "one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal." (Civ. Code § 3480.) A private party can maintain an action based on a public nuisance "if it is specially injurious to himself, but not otherwise." (§ 3493.) The damage suffered must be different in kind and not merely in degree from that suffered by other members of the public. (Koll-Irvine Ctr. POA v. City of Orange (1994) 24 Cal.4th 1036, 1040.)

Private Nuisance. Unlike public nuisance, which is an interference with the rights of the community at large, private nuisance is a civil wrong based on disturbance of rights in land. A nuisance may be both public and private, but to proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land. The injury, however, need not be different in kind from that suffered by the general public. So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance. (Koll-Irvine Ctr. POA v. City of Orange (1994) 24 Cal.4th 1036, 1041.) Although the wording may be different, a nuisance provision is commonly found in an association's governing documents. For example:

No noxious or offensive activities shall be carried on in any Condominium or in the Common Area, nor shall anything be done therein which may be or become an annoyance or nuisance to other Owners.

Examples of activities that fall into the nuisance category include:

  1. Noise. Things that interfere with quiet enjoyment such as improperly installed hardwood floors, neighbors playing their stereo or TV too loud, barking dogs, etc.
  2. Odors. This includes second-hand smoke (cigarettes, cigars and marijuana), strong cooking odors, smoke from a BBQ grill entering other units, etc.
  3. Visual. Draping towels and clothing over balcony rails, storing junk on balconies and patios, storing inoperable vehicles in parking spaces.
  4. Health/Safety. Hoarders who allow unsanitary conditions to exist that attract insects and rodents, or residents who wash dog feces and urine off their balcony onto the property below them.
  5. Violation of Laws. A violation of federal or state laws or local ordinances. An example would be public nudity or a resident engaged in drug dealing or prostitution.

Annoyance vs. Nuisance. The courts have noted that a certain amount of "nuisance" must be tolerated:

[E]very annoyance or disturbance of a landowner from the use made of property by a neighbor does not constitute a nuisance. The question is not whether the plaintiffs have been annoyed or disturbed ... but whether there has been an injury to their legal rights. People who live in organized communities must of necessity suffer some inconvenience and annoyance from their neighbors and must submit to annoyances consequent upon the reasonable use of property by others. (Schild v. Rubin (1991) 232 Cal.App.3d 755 , 764.)

Life in organized society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities unless carried on in a wilderness interfere to some extent with others or involve some risk of interference, and these interferences range from mere trifling annoyances to serious harms. It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference and must take a certain amount of risk in order that all may get on together. The very existence of organized society depends upon the principle of "give and take, live and let live," and therefore the law of torts does not attempt to impose liability or shift the loss in every case in which one person's conduct has some detrimental effect on another. Liability for damages is imposed in those cases in which the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least without compensation. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937-938.)

Association's Duty. Boards must investigate nuisance issues and make a good faith determination whether a complaint is legitimate. Some complaints lack merit whereas others may require action to eliminate the nuisance.

Recommendation: Because a nuisance is often subjective, boards should adopt guidelines addressing common problems, such as barking dogs, hardwood floors, parties, entertainment centers, and smoking.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

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