Nuisances and Restraining Orders

Nuisance is defined in California Civil Code Section 3479 as: "Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, 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".

Nuisance is also defined in most CC&Rs of common interest developments. These definitions are generally much more broad than the statutory definition. In fact, many homeowner associations are amending their CC&Rs for the purpose of creating broad language that can be used to abate many types of undesirable activities. In addition, some associations are amending their CC&Rs to permit the board of directors to determine whether a nuisance exists.

A common nuisance provision found in CC&Rs follows: "No noxious or offensive activities shall be conducted within or upon any portion of the Property nor shall anything be done or permitted within any Unit which is or could become an unreasonable annoyance or nuisance to the neighborhood. Without limiting any of the foregoing, no Owner shall permit noise of any sort including, but not limited to, barking dogs, the operation of air conditioners, stereo amplifier systems, television sets, motor vehicles and power tools, to emanate from an Owner's Unit or any portion of the Common Area which would unreasonably disturb other Owners' enjoyment of their Units or the Common Area. Excessive noise levels may be determined in the sole discretion of the Board which may, but shall not be obligated to rely on state law".

The following elements must be proven in a court of law to prevail on a nuisance claim:

• The plaintiff owned, leased, occupied or controlled the property;

• The defendant created a condition that met one of the following elements:

• It was harmful to health;

• It was indecent or offensive to the senses;

• It interfered with the plaintiff's use or enjoyment of his or her property;

• The plaintiff did not consent to the defendant's conduct;

• An ordinary person would be reasonably annoyed or disturbed by the defendant's conduct;

• The plaintiff's conduct was a substantial factor in causing the plaintiff's harm, and the seriousness of the harm outweighs the benefit of the defendant's conduct.

• The plaintiff suffered harm.

San Diego HOA Management