1.         Open up communication.

            The complaining neighbor may not have even brought the complaint to the attention of the alleged offender. Often, it only takes bringing the matter to the attention of the offender for a resolution.

 

2.         Who else can help?

            If the complained-of conduct borders on criminal, call the police. Also consider another agency with jurisdiction, such as code enforcement, animal control, or the health department, depending on the nature of the complained-of conduct.

3.         Is a restraining order available?  

            If the conduct is particularly egregious or has involved violence or the threat of violence, the victim homeowner may be eligible for a temporary restraining order (TRO). A violation of the TRO can result in a contempt citation.

 

4.         Is the dispute covered by the CC&Rs?

            If so, the homeowner has the power to enforce it directly against a neighbor.

 

5.         Is the nuisance a private nuisance?

            If the conduct only offends one neighbor, it is a private nuisance and the Association (and the Manager) should decline to intervene.

 

6.         Alternative Dispute Resolution

            Regardless of whether the Association is to become involved, an offer to submit the matter to alternative dispute resolution (ADR) is a prerequisite to suit, and the complaining homeowner should be advised to follow the procedure set out in Civil Code §1369.510 et seq. or, if the Association is to be involved, it should follow the procedure set out in Civil Code §1363.810 et seq. (internal dispute resolution).

 

7.         The Association has discretion in many cases whether to insert itself into the dispute

            Beehan v. Lido Isle Community Association (1977) 70 Cal.App.3d 858, 137 Cal.Rptr. 528 (the business judgment rule applies to an HOA decision whether or not to sue).

 

8.         The owner can only enforce a provision in the CC&Rs, not in the other governing documents.

            If the dispute centers on something contained in the bylaws or rules of the Association, the homeowner may not have an individual right to enforce the provision. HOA involvement may be unavoidable.

 

9.         Is the CC&R language discretionary or mandatory?

            If the language of the provision is that the HOA “may” enforce the provision, then, for private nuisance or dispute affecting only one neighbor, the Association has discretion to not be a party. If the language indicates that the HOA “shall” enforce the provision, then the HOA’s discretion to not involve itself is limited to a business judgment that the situation does not merit action.