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

            If the Association has adopted an internal dispute resolution procedure, it should be offered as a means for resolution of disputes between an Association and a Member. If the Association has not adopted an internal dispute resolution procedure, it should follow the procedure set out in Civil Code §§5900 et seq. “Alternative Dispute Resolution” (ADR) means mediation, arbitration, conciliation, or other nonjudicial procedures that involve a neutral party in the decision-making process.

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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).

            “However, with respect to internal dispute resolution, if the procedure is invoked by a Member, the Association must participate in the procedure. Civil Code §5910(c). Note that beginning in 2015, both the Association and the Member may have legal representation, at their own cost, but the Association may not impose a charge or fee for participation in the ADR process.

 

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.