How To Handle Neighbor Disputes in Your HOA Community

Navigating Neighbor Disputes in HOA Communities: Your Rights and Options

Living in a homeowners association (HOA) community can offer many benefits, but it also comes with unique challenges - especially when conflicts arise between neighbors. As California's leading HOA law firm, we frequently encounter these sensitive situations. In this post, we'll break down the key issues surrounding neighbor disputes in HOAs and provide guidance on how to address them effectively.

Understanding the Contractual Relationship in HOAs

Many homeowners don't realize that when they purchase a property in an HOA community, they enter into a contractual relationship not just with the association, but with their neighbors as well. The Covenants, Conditions, and Restrictions (CC&Rs) establish obligations between all parties. This means that if your neighbor violates the CC&Rs in a way that impacts you, it could potentially be considered a breach of contract.

Common Types of Neighbor Disputes in HOAs

1. CC&R Violations

CC&R violations can take many forms. Some common examples include neighbors failing to clean up after their pets, engaging in prohibited commercial activities from home, or making unapproved architectural changes to their property. These actions not only violate community rules but can also negatively impact the quality of life for surrounding residents.

2. Use of Common Areas

Issues often arise around the use of shared spaces within the community. Parking violations are a frequent source of conflict, with residents or their guests improperly using designated spaces. Improper use of amenities like pools or green spaces can also lead to disputes. In condo associations, disagreements over shared spaces are particularly common due to the close proximity of living arrangements.

3. Noise and Nuisance Complaints

Noise and nuisance complaints are particularly prevalent in multi-unit buildings. These can stem from excessive noise caused by hard flooring, frequent parties, or simply day-to-day activities that carry through shared walls. Other sensory disturbances, such as strong odors, can also fall into this category. Violations of quiet hours or other community rules designed to maintain peace and order often lead to neighbor conflicts.

4. Architectural and Aesthetic Disputes

Conflicts can emerge when homeowners make changes to their property that affect the overall aesthetic of the community. This might include unapproved exterior changes or paint colors that don't align with community standards. Fence placement disputes, especially those involving potential encroachment on neighboring properties, are another common issue. Construction projects can also lead to disagreements, particularly when it comes to noise and disruptions during the building process.

Steps to Address Neighbor Disputes in HOAs

When facing a neighbor dispute in your HOA community, it's important to approach the situation methodically. Start by thoroughly documenting the issue. Keep detailed records of incidents, including dates, times, and any communication with your neighbor or the HOA. This documentation will be crucial if the dispute escalates.

Next, review your governing documents carefully. Examine your CC&Rs and HOA rules to identify specific violations. Understanding the exact rules that are being broken will strengthen your position.

Once you've gathered evidence and understood the rules, attempt to resolve the issue directly with your neighbor. Approach them calmly and respectfully, explaining your concerns. After any verbal discussions, follow up with an email to create a paper trail of your communication efforts.

If direct communication fails to resolve the issue, it's time to involve the HOA. Notify your HOA board or management company of the ongoing problem. They may be able to mediate the dispute or take enforcement action if necessary.

Under California's Davis-Stirling Act, homeowners have the right to request an Informal Dispute Resolution (IDR) meeting with the board to discuss disputes. This can be an effective way to address the issue in a formal setting without immediately resorting to legal action.

If all other attempts at resolution fail, it may be time to consider legal action. Consulting with an experienced HOA attorney can help you understand your options and the best course of action for your specific situation.

The HOA's Role in Neighbor Disputes

It's crucial to understand that HOAs have a fiduciary duty to enforce the CC&Rs and maintain the community. If an association fails to address ongoing violations or nuisances, they may be breaching their duty to homeowners. In some cases, homeowners may have grounds for legal action against both the offending neighbor and the HOA if the association fails to take appropriate action.

Case Study: Persistent Water Leak

Consider this scenario: A homeowner discovers a leak originating from their upstairs neighbor's unit. Despite multiple repair attempts, the leak persists. The HOA refuses to get involved, calling it a "personal matter" between units.

In this situation, the affected homeowner likely has grounds for action against both the neighbor (for negligence and CC&R violations) and the HOA (for breach of fiduciary duty in failing to protect the building's common areas from water damage).

When to Seek Legal Counsel

While it's always best to attempt resolution through direct communication and HOA processes first, there are times when involving an attorney becomes necessary. These situations include when the HOA refuses to enforce clear violations of the CC&Rs, if informal dispute resolution attempts have failed, when significant property damage or ongoing nuisances are occurring, or if you believe the HOA is breaching its fiduciary duty to homeowners.

Conclusion

Neighbor disputes in HOA communities can be complex and emotionally charged. Understanding your rights, following proper procedures, and knowing when to seek professional legal guidance are crucial steps in resolving these conflicts effectively.

At LS Carlson Law, we have extensive experience navigating the intricacies of HOA disputes. Our team is dedicated to protecting homeowners' rights and ensuring that associations fulfill their obligations to the community. If you're facing a challenging neighbor dispute in your HOA, don't hesitate to reach out for a consultation.

Remember, while living in close proximity to others can sometimes lead to conflicts, a well-functioning HOA should provide mechanisms to address these issues fairly and efficiently. By understanding the process and your rights, you can work towards a harmonious living environment for all community members.

Bad HOA Podcast Episode Transcript: Neighbor Disputes in HOAs

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Welcome back to our podcast. Today we have Jenny on the show. Jenny, welcome.

Bad HOA Contributor, Jenny Carlson

Thank you for having me.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Thanks for being here. And of course, our producer, Marty.

Bad HOA Producer & Contributor, Marty Vasquez

It's always good to be back.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Thank you. Today's topic is neighbor disputes in the context of an association. We're analyzing this from a California perspective, and I find this particularly interesting because we encounter these situations frequently.

Bad HOA Producer & Contributor, Marty Vasquez

I'm really intrigued by this because when I think of HOA disputes, I don't typically consider problems with neighbors. Why does an HOA ever come into play in this scenario?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

If you look back at our previous episodes, we've typically focused on issues specifically between the association and homeowners. When neighbor disputes are brought up, most people wonder what the association has to do with a neighbor-to-neighbor dispute. That's exactly the point.

Let me lay the groundwork on this. When we look at an association, we have CC&Rs, which establish a contractual relationship. The understanding typically is that the contract is between the association as an entity and the property owner. However, what people often don't realize is that this contractual relationship also exists between neighbors. This means if you have a neighbor who's violating the CC&Rs and impacting you, it could potentially become a breach of contract because they owe you certain contractual obligations as a neighbor. So it's not always just association-to-neighbor, but neighbor-to-neighbor also has that contractual CC&R foundation.

Bad HOA Contributor, Jenny Carlson

That's so interesting because I feel like people don't realize that.

Bad HOA Producer & Contributor, Marty Vasquez

No, I certainly didn't. It's one of those situations where you might think, "Well, in our CC&Rs it says you must talk nicely to me, and you're not talking nicely to me."

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, there is that element of decorum. That's kind of the purpose of an association in the first place, right? To show respect for neighbors. You do that through maintaining your property, by ensuring that you don't have seven cars in your front yard, and things like that. These are typically prohibited by the CC&Rs. The goal is to preserve property values and also to preserve your right to quiet enjoyment, the right to enjoy your property. CC&Rs serve as a protection, or at least in theory they should.

So the question often becomes, "I live in a community, I don't necessarily have an issue with my association, but my neighbor is out of their mind. They're causing problems, they don't respect anyone, they don't respect me. And because of what they're doing, it's impacting my life." That's really the context of this podcast, right? That's what we're talking about.

Bad HOA Producer & Contributor, Marty Vasquez

I've noted a few different things here. The first one we briefly talked about, but I think it's worth repeating, is CC&R violations. So when a neighbor is violating CC&Rs.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Let me try to think of an example that would directly impact a neighbor because it's important to understand the context.

Bad HOA Contributor, Jenny Carlson

I can offer one example I've seen in our neighborhood: when people walk their dogs and don't clean up after them.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, that's actually a good one. You might have something in the CC&Rs that requires pet owners to pick up their dog's waste. If that's not happening, you might have a direct claim against your neighbor. That might be a violation of an express provision within the CC&Rs, and that could be a neighbor-to-neighbor issue.

Another example could be a neighbor engaging in some sort of commercial activity. Maybe they're in their backyard sawing all day, creating a nuisance or excessive noise, or doing something that the CC&Rs explicitly prohibit. If there's a rule against commercial activity, yet your neighbor is engaging in a commercial activity, you may have a right to take action against your neighbor to stop that behavior. And again, it's under this theory of breach of contract.

I've seen a scenario where someone was running a bike shop out of their garage.

Bad HOA Contributor, Jenny Carlson

We know people running Pilates studios, whatever it is.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Whatever it is. The issue there is you have high foot traffic, you have people coming in and out, and that can become very problematic. That becomes its own form of nuisance. In that scenario, the neighbor would have a potential claim against the other neighbor for the violation of the CC&Rs. So that's one way to conceptualize these disputes.

Bad HOA Producer & Contributor, Marty Vasquez

When you have a situation like that, does the HOA actually get involved?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Let's talk about that. To the extent that the association is aware of an open, outstanding violation of the CC&Rs, there is an obligation for the association to investigate and potentially enforce. So what's interesting in these disputes, let's take the neighbor dispute we mentioned. Your neighbor is engaged in a commercial activity, it's creating a real nuisance, right? Maybe it's high foot traffic, noise, etc. So you have this ongoing issue. You notify the association and the association says, "We're not going to do anything. We don't care. We're going to allow them to do it."

Bad HOA Producer & Contributor, Marty Vasquez

I've seen that happen a lot in Reddit discussions. They say the HOA often responds with, "Hey, it's not really our business. It's between you two."

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Right. And this is where an attorney could come in to determine whether it is truly a neighbor-to-neighbor issue. More often than not, though, when there's an outstanding violation of the CC&Rs and the association is doing nothing, what becomes interesting legally is that the homeowner might have two options or two areas of attack. One against the association for failure to enforce - the association has a fiduciary duty to you to enforce. I mean, that's really their function, right? To enforce CC&R violations. To the extent that they're not doing it, it might be a breach of fiduciary duty, it might be a breach in and of itself of the CC&Rs. So that's part one. You might have a claim against the association. And then you flip it over, you might have a direct claim against your neighbor as well. So you have two fronts.

To conceptualize it, it puts you in a relatively powerful position. You're putting pressure on the association and you're putting pressure on the neighbor. Now, really, the theory is if you're going to put pressure on the association, what do you want them to do? You want them to enforce. So you might come aggressively at the association, which might then force their hand to actually use their enforcement mechanisms against your neighbor. That could be an effective way to address this type of dispute.

Bad HOA Producer & Contributor, Marty Vasquez

That's interesting. Let's jump into the use of common areas. So that would be pools, parks, parking areas. I feel like parking is such a lightning rod for disputes.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Parking is huge. It's a major bone of contention, and that's a byproduct of a number of things. One, people just don't care and they don't respect the rules, or you have an HOA that doesn't enforce, or there's massive ambiguity around the space.

Bad HOA Contributor, Jenny Carlson

I feel like it could get tricky in instances like the community pool. So once that little lot is filled and you have a street next to a community pool or any community common area, what do you call it, grassy area?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Greenbelt. Yes, so I think what you're getting at is overflow. How does that work? How does that interact with designated parking areas? Parking, I think, becomes an issue because it sort of becomes a friction point for homeowners, right? Someone is parking incorrectly and now taking your spot, or someone frequently has guests, or in the situation with the commercial enterprise, all the parking spots are being used because you have customers parking there and they're impeding your right to use it.

Bad HOA Producer & Contributor, Marty Vasquez

I feel like this happens probably more frequently in something like a condo association where you're only designated so many parking spots and they're not marked. And they say, well, you have to park all vehicles inside of the garages. And then they run out, but no one's really abiding by that and you have nowhere to park.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, so definitely in condo associations, you see that quite a bit. You also see it with the question about commercial vehicles, that becomes an issue as well.

Bad HOA Producer & Contributor, Marty Vasquez

Oh, like if you were the bread delivery person and you drive your truck home every day?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Right, what constitutes a commercial vehicle. So that's a huge issue within the association context in terms of disputes. A lot of disputes come out of parking. But if you go to the common area as well, utilization of the common area can create a neighbor dispute, especially if there's a greenbelt. What I've seen before is a homeowner will consistently use the greenbelt, will put patio furniture on the greenbelt, and it's just not – they don't have the right to do so.

Bad HOA Producer & Contributor, Marty Vasquez

Yes, the bench. The bench with that poor man? We watched that news article on that. The John Oliver video.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

That was an interesting episode. Go back to that one. It's a good one.

Bad HOA Producer & Contributor, Marty Vasquez

So let's talk about noise and nuisance complaints. When I think of neighbors and problems with neighbors, this is the one. This is the Mount Everest.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

You are 100% correct. Noise and nuisance. So how does this arise? Well, in condos, let's start there.

Bad HOA Producer & Contributor, Marty Vasquez

Alcohol?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

You're not wrong. So you see this in condos frequently, often it's an upstairs neighbor who is just relentless on the flooring. You know, they're tap dancing in the middle of the night, they have big parties, dogs, cats, animals, music. Especially in close quarters, it's just going to lend itself to that.

Bad HOA Producer & Contributor, Marty Vasquez

And some CC&Rs, if I've learned too much about this topic now, require a homeowner on higher floors to put in carpet for noise reduction. So there could be a contentious issue if someone decides to put in hardwood flooring or laminate.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, so it's often in the reverse, no hardwood flooring, that's what it says. It doesn't say carpet, it says the opposite, right? But then you have someone who comes in, puts in flooring, and is now creating an ongoing nuisance, and they don't want to rip it out because they spent a lot of money on it. But at the same time, someone else's life has become a living nightmare, right? I've actually experienced that before when I was in law school.

Bad HOA Contributor, Jenny Carlson

We had that toddler that lived above us that had a walker and would just zoom around as fast as possible.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

It was endless. And it was so loud, it sounded like thunder every couple of minutes and it drove me crazy. So I can empathize with this situation and then sometimes it's even compounded when it's at night, it's in the middle of the night, someone's working odd hours. So there you have a nuisance that's ongoing and that's interesting now when you look at it from an HOA perspective, right?

So if the association knows, let's say, that there's hardwood flooring, I would argue they would have an obligation to correct or enforce. Often what the association will do at that point would be to take some action against your neighbor and maybe force their hand to put carpet or put some sort of protective layer on the flooring. And that can become a fight unto itself, but at least you're now leveraging the association on your behalf. Now, if the association isn't doing anything, again, you probably have some claim against the association for failure to act or failure to enforce. Again, breach of fiduciary duty, possible breach of CC&Rs, but you would have a direct line of attack against the neighbor. And there it might be breach of CC&Rs, nuisance, you have this ongoing nuisance claim, etc. So that could also become a very direct way where you can enforce your rights against a noisy neighbor.

Bad HOA Producer & Contributor, Marty Vasquez

Interesting. Let's go to architectural and aesthetic disputes. So, I'm assuming neighbor painted the house or did something. Maybe, I would assume a lot of fence disputes in here as well.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, let's go into architectural first because typically that is with the association. Let's say someone paints their house fuchsia, and it's not permitted within the CC&Rs. If you're the neighbor and you have to look at that every day, probably your best approach there is just to put the association on notice. I don't know if you want to spend the resources and time trying to fight that fight when really it would be the association's fight in the first place.

Now, where we get into fences and the like, there you might have an encroachment issue and that can get interesting. So let's say someone puts up a fence and it encroaches into your property. So encroachment or trespass, right? They're actually on your property. What would be interesting to see is whether or not that fence was approved. And so to the extent that the association approved it, meaning they looked at this application and they said, this is wonderful, no issue, and they missed the fact of the encroachment, it's possible that you would have a claim against the association. That could be a negligence claim.

Bad HOA Producer & Contributor, Marty Vasquez

Would the HOA at that point be liable?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, again, it would be negligence, right? So they failed in their responsibility to properly approve, and as a result, you've been damaged. How were you damaged? Well, now you have a trespass. You have a fence that's encroaching onto your property.

Bad HOA Producer & Contributor, Marty Vasquez

Right. But the other neighbor on the other side might say, well, you approved this. I'm not taking this down.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, so the association might be in a challenging position. That could get interesting legally. Or is it possibly the architect that the neighbor hired to do the plans? Did they mess up? Is that some sort of professional negligence? Someone dropped the ball somewhere, unless it was malicious and intentional. That's a different story. Hard to prove. But from the application itself, if they were dealing with accurate maps, it should have been very easy to identify where the boundary line is. Or is it a contractor dispute, meaning the application was properly approved, the architectural plans were accurate, but you had some contractor who messed it up and put it three feet encroaching into the other property? So these can cut in a lot of different ways.

I think for our purposes on this podcast today, though, it's identifying that you have rights there, and it could be a direct attack against the neighbor to sort of force their hand to push it back, or it could be against the association to use their enforcement mechanisms to compel or force your neighbor to bring that fence back to the boundary line, or wherever it is, if there's a setback.

Bad HOA Contributor, Jenny Carlson

I feel like the neighbor-to-neighbor dispute would get interesting, specifically in construction, because there's a reasonable amount of noise that's going to happen, but I could see how, if they feel like there's excess noise, or if it goes above what's decent.

#### Bad HOA Producer & Contributor, Marty Vasquez

I read one on Reddit that the laws and the CC&Rs say that construction can start at seven, one neighbor threw a fit and said, no, you have to wait until eight. And yeah, just again, lightning rod.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, construction I think turns on two things. First and foremost, was the application approved or was the construction approved in the first place? Now you get into scenarios where someone comes in, let's say it's your neighbor and does construction without the appropriate approval of the association.

Bad HOA Producer & Contributor, Marty Vasquez

Does all construction need the approval of the HOA? Even getting a bathroom redone?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

It depends. What you're looking at there is the CC&Rs and the regulations around the architectural control committee. So what do they require? And normally what we see or what's very common is anything outwardly facing, it tends to have to go through the architectural control committee. Any sort of foundational or structural issues, typically yes, you have to bring it through the board or the committee. More minor cosmetic changes, maybe not. But you have to look at the governing documents or you have to look at the guidelines that are attached to the CC&Rs.

Bad HOA Producer & Contributor, Marty Vasquez

Now, if we've covered this a little bit, but let's just say in the case of getting a bathroom or some sort of interior work done, has no bearing on the HOA itself, and they want to get started at a certain time, the state and local laws say that you can start at seven, but the CC&Rs say, no, sorry, you have to start at eight. Is there a conflict there?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

That's interesting. The CC&Rs that I've historically seen are consistent with city and local ordinances. I've never seen it really modify that. I don't know offhand what would prevail because it's a contractual term. I don't know. It's interesting.

Bad HOA Producer & Contributor, Marty Vasquez

Maybe we'll circle back. I haven't seen that come up.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

I mean, listen, if it comes up, we can obviously research it. I've never seen a conflict between the two. Normally they set it to whatever is common within the community or county or state.

Bad HOA Contributor, Jenny Carlson

I just had a friend deal specifically with the noise of construction, what was considered reasonable noise and what was considered excessive noise and that became a neighbor-to-neighbor issue.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Was that in the context of an association?

Bad HOA Contributor, Jenny Carlson

Yes. Interesting. And I forget how it panned out, but I thought that was just interesting.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Often it comes down to a battle of experts. Do they need a jackhammer 24-7? And then you also have to look at whether or not what they're doing falls outside of the scope of the application because that's very common. And when that happens, you know, the person who's doing construction outside of that scope is going to have massive problems.

Bad HOA Producer & Contributor, Marty Vasquez

Do they ever have an issue where, again, your work in interior has no bearing on any sort of architectural control guidelines or anything like that. But where people park, and how do we take away trash, and how they keep clean?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

All of these can become problematic. You're looking at the standard of care, are the contractors falling below the standard of care?

Bad HOA Producer & Contributor, Marty Vasquez

So, is it good practice, in your opinion, if you have some sort of contractor come in to, even if it has no bearing on the HOA, or anything within the CC&Rs, to just say, hey, I'm having construction here, I need to let people through the gate, they're going to be here this long. Is it good to put them on notice? The association?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, I think communication is always good with the association. To the extent that the contractor's coming in based upon an application that was submitted, then the association arguably already knows and already has a timeline of work. They have a schedule. Now, if you're suggesting that this contractor is coming in on something that didn't require an application, is it best practices to notify the powers that be? Possibly. As a common courtesy, you might even want to notify your neighbors so you don't run into these disputes in the first place. But I think it depends on the scope and the nature of what's happening. And typically, the larger scope construction issues or jobs typically require notice anyway to the association.

Bad HOA Producer & Contributor, Marty Vasquez

Interesting. Okay. Let's jump into some resolutions. We went over a lot of the problems. I mean, this goes without saying, every HOA dispute follows a very similar template, but number one, document the issue.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes. Document everything. I always encourage email communication, even if it's a phone call, follow up with an email, just to review what was discussed, just to memorialize.

Bad HOA Producer & Contributor, Marty Vasquez

You start taking pictures, take your emails, take your notes, start documenting as detailed as possible.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

And let's say you have a conversation with the neighbor. You may want to follow up with an email. It's like, "Dear Susie, wonderful talking to you. Hopefully we can get this thing resolved. Again, this is to memorialize our discussion, just to ensure clarity." Because often what happens is you have a conversation with someone and there's sort of a rejection of that conversation down the line when it's convenient. It's harder to sort of argue against an email. So emails are very important, photographs, video, anything that you can do to back your position, it's encouraged.

Bad HOA Producer & Contributor, Marty Vasquez

Number two, review the governing documents. I'm assuming nine times out of ten, this is going to be your best friend because your neighbor is more than likely breaking a rule within the CC&Rs.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, so once you frame the issue and you sort of have your head around it, it's always good to go to the CC&Rs. Understand that. Probably the best way to approach CC&Rs because often they're quite dense. You know, go to the index, try to triangulate that way as opposed to just starting on page one.

Another tip if you can OCR it, meaning you can do a control F search within the CC&Rs. That's very helpful. But often, you know, if you're in a dispute like this, you're often looking at certain terms: nuisance, noise, odors, parking, and it should be able to bring you to that section. If you can't do that, then just, you know, good luck. You're going to be reading quite a bit. But you should be able to skim it.

Bad HOA Producer & Contributor, Marty Vasquez

Because you're going to want to reference, I'm assuming, you're setting the stage of "I got all the documentation I needed. Now I need to prove that this is the area that they're violating."

HOA Attorney & Podcast Host, Luke Carlson, Esq.

You're isolating the provision or provisions that have been violated. And that's the foundation of everything that you're doing. So take the flooring issue, right? If someone has installed hardwood floor, you want to be able to articulate pursuant to provision 3.2, you can't do that. Absolutely.

Bad HOA Producer & Contributor, Marty Vasquez

So the next step would be just communicate with the neighbor. Have that dialogue. Have that discussion with the neighbor. You've got the evidence. You've got the violations that they have and just communicate. And I assume we just touched upon this but email even if you have a phone conversation. Having a follow-up email to, as you say, memorialize it would be mission-critical.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Communicate, try to work with the neighbor first. I think that's always the first start with the olive branch. You don't need to start with the sword.

Bad HOA Contributor, Jenny Carlson

So well the keywords "in a calm and respectful manner."

HOA Attorney & Podcast Host, Luke Carlson, Esq.

I think that's true. I mean, you have to live next to them. And if you can avoid a war with your neighbor, that's never a bad thing. So yeah, be respectful. I think if you can identify the issue and be objective or reasonable, arm's length, it tends to go a long way. When these things go south, it's often a battle of wills at some point. It becomes visceral in nature, or you have something that seems sort of petty on its surface, that seems curable, becomes this huge thing. And once it becomes a battle of wills, the DNA of the dispute changes. And often it changes because someone comes at someone else very aggressively and someone doesn't like that and all of a sudden they lock horns. So I agree with that tip.

Bad HOA Producer & Contributor, Marty Vasquez

All right, so that all fails. Communicate with neighbor, they either ghost you or they don't care. The next level involved, the next, I guess, step is, well, when do you involve the HOA?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, so if you're not getting traction with the neighbor, let's use a flooring example, or a noise, or a commercial activity, and they say, we're not going to stop, we're not going to do anything, it may make a lot of sense to start working with the association at that point. And you can do that through just notifying them with an email, and if they're not listening to that, then you can always escalate to the process which we discussed quite a bit, which is IDR, which again is Informal Dispute Resolution. This is under the Davis-Stirling Act. But again, the spirit of that is allowing a homeowner an avenue to sit down with the board and discuss an issue face-to-face. Now when I say face-to-face, it could also be over Zoom. But by demanding IDR with the board, you can actually bring it to their attention, you can articulate it, you can sit with them, and you can try to problem solve.

Bad HOA Producer & Contributor, Marty Vasquez

And just to clarify too, because I know we've gone over this multiple times, but I think it's worth it for the people that are just listening to this episode, IDR, requesting IDR is your right under the Davis-Stirling Act. It is a legal obligation for them to respond at that particular point.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

People articulate that this way quite a bit. And there is a good faith underpinning to IDR, meaning that your association, a well-functioning association will respond favorably to your IDR request. Now when you say it's a legal obligation, you know, I always look at a legal obligation in terms of, okay, if you don't do it, what's the ramification? And under IDR, unfortunately, there's no real ramification. So even if you say, yes, under the Davis-Stirling Act, I have a right to IDR, you demand it and they tell you to go kick rocks, there's not necessarily some sort of punitive damage attached to that. Now, does it show bad faith? Yes. If you eventually escalate the dispute and it ratchets up, then yes, you can go back and say, hey, we tried to do IDR, they rejected it.

Bad HOA Producer & Contributor, Marty Vasquez

Or they ghosted you completely.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Correct. That could be a very powerful piece of information down the road. But for the immediate, they rejected it, there's not too much you can do at that point other than switch gears and try to become more aggressive with the association. So that's IDR.

Bad HOA Producer & Contributor, Marty Vasquez

I kind of hate that there are no repercussions, especially coming off of that, of Florida's just sweet new laws out there that there are so many more ramifications now.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, it's becoming more punitive. And I've always been an advocate of making the violations more punitive in nature because as I see it, if you have an association and they're a good association, what do they care?

Bad HOA Contributor, Jenny Carlson

Yeah.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

If there are strong penalties for not doing something, but you're doing everything, why would I care that there's a massive ramification?

Bad HOA Producer & Contributor, Marty Vasquez

The only thing would be is that you're disincentivizing people from wanting to be on these boards at all.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Correct, but again, someone who's disincentivized, if you say, hey, if you act in bad faith, if you engage in fraud, if you harass someone, if you selectively enforce, you're going to get in a lot of trouble, and someone goes and says, oh, I don't want that hassle. Maybe you're doing something good. It's like, listen, if California changed its driving laws to say if you drive over 120 miles per hour, you're going to go to prison automatically for 30 years. I don't care, because I don't drive that fast. It doesn't impact me at all. So similar to this, I mean, if you ratchet up the ramifications, it might actually create a lot of good in this space.

Bad HOA Producer & Contributor, Marty Vasquez

But I digress. When do you bring on the attorney? I'm assuming if they blow off your IDR request, it's time to bring on an attorney.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

If they ignore the IDR, quite possibly. Or you go to IDR and it's a complete waste of time. It's a shouting match. They shut you down. They stonewall you. They back the neighbor for whatever reason. At that time, you want to maybe talk to an advocate or a third party.

Bad HOA Producer & Contributor, Marty Vasquez

Or, I guess, I was just thinking, and maybe you disagree, but what if the HOA is unwilling to do anything? They're just saying, hey, this is between you two, don't involve us. It's clearly they're breaking the rules in the CC&Rs, but they're not going to do anything about it.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes. So that's sort of a stonewall. They're stonewalling you. They're saying kick rocks. So, yes. No, I agree. At that point, you determine whether it makes economic sense to bring in a lawyer, and to the extent that it does, you talk to a lawyer.

Bad HOA Contributor, Jenny Carlson

And our phone number is...

Bad HOA Producer & Contributor, Marty Vasquez

All right, Jenny, you ready for the best part? We have a little Reddit segment that we found that Luke has not heard. People like this one. All right, so let's see. Here we go.

Bad HOA Contributor, Jenny Carlson

My wife and I live in a California condo with an HOA. Earlier this year, we discovered a leak in our ceiling. We initially called the plumber who had previously done re-piping work for us. However, he confirmed that the issue wasn't related to his work. We then hired a second plumber who also determined the leak wasn't from our pipes but rather from our upstairs neighbor's unit. He advised that our neighbor needed to call a plumber to address the issue. We informed our neighbor who then contacted his home warranty provider but they refused to take action. His realtor subsequently brought in a plumber who advised that the bathtub, a 40-year-old fiberglass unit, needed replacement. However, our neighbor refused to replace it. Eventually our neighbor hired another plumber who attempted minor repairs such as replacing the drain and resealing faucet valves, but these measures were ineffective. The leak persists within 24 hours of each visit.

Throughout this ordeal, we have kept our HOA and its management company informed, expressing our concerns about potential mold and structural damage. Unfortunately, they have declined to assist, considering it a personal matter between the two units. We also contacted our homeowner's insurance, but they advised that they could not intervene, suggesting instead that the HOA should be able to step in. At this point, we are unsure of our options.

Bad HOA Contributor, Jenny Carlson

At this point, we are unsure of our next steps. Is it time to consult a lawyer?

Bad HOA Producer & Contributor, Marty Vasquez

This has a lot of different entanglements in it. This is contractors, this is all sorts of fun stuff in here.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, but you can actually cut it to the bone pretty quickly. So yes, I think a lawyer does make sense, lawyer intervention. I'm curious to see what the actual damages are, so how much water damage is happening because with water damage, I mean, that could be very serious, very quick, especially with mold, etc.

So let me back out. First, the impacted neighbor would have a direct claim against the neighbor upstairs. That would be a negligence claim, most likely a violation of the CC&R's claim. And that could be run in, I suppose, I guess you'd go straight to ADR. It'd be an ADR demand to the neighbor if you wanted to be very aggressive. Or you get a lawyer to just threaten action if they don't address it. Because maybe what's happening is the neighbor isn't taking it seriously.

Bad HOA Producer & Contributor, Marty Vasquez

That's what it sounds like here.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

They say, well, I've done what I could. I can't do anything further.

Bad HOA Producer & Contributor, Marty Vasquez

Which is weird because if it's leaking and causing a problem at the unit below, it's certainly causing a problem with your own unit. Correct. But at what point is it structural to where it's more of the HOA's issue?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, so that's the other thing I would say, you know, I would say that the association absolutely has an obligation to do something. And the reason is, is because if it's going through flooring, what's in between the flooring is often considered common area. So the actual building itself could be compromised due to this leak. Now, an association has a fiduciary duty to protect the building, to protect the common areas. And if they know that there's an active leak and they're not doing anything, that becomes a breach of fiduciary duty, that becomes negligence, that becomes a breach of CC&Rs, so you have two targets that you could hit very aggressively on this, if you wanted to.

You know, I guess, if you didn't want to bring in a lawyer, you could always go the small claims route, California's $12,500 in damages.

Bad HOA Producer & Contributor, Marty Vasquez

That's not going to do it. But, I just had a leak, ain't going to come in close.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

But let's assume for a second that it would. Let's say that we caught it early, it was $12,500 in damage. The issue that I see, though, is it's more ongoing. If they don't ever solve the leak, sure, you get the $12,500, you patch up your ceiling or whatever was impacted in your unit, and it happens next week. So that's probably not going to work. So yeah, you have to get much more aggressive with this, but I would go after both targets.

Bad HOA Producer & Contributor, Marty Vasquez

What if they did something incredibly stupid and just said, okay, we're just not going to use our bathroom, this particular shower anymore, and we're going to stop the problem? As a homeowner underneath them, it's like this is a time bomb. It's one mistake away from leaking again.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

I'd say you still go after them because how do you know with any certainty that they're going to comply with that? Sure. And two, there's already been damage. You know what I mean? It's not like spray painting a wall and saying, okay, I'll never spray paint that wall again. Well, you've already done the damage.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

So just because you're going to forgo spray painting in the future, doesn't mean you cannot still be held accountable for what you've already done, and that's similar here. The damage, the water intrusion issue has occurred, so now it's enforcement. So this homeowner probably has a number of ways to enforce, and very meaningful and powerful ways to enforce if they wanted to.

Bad HOA Producer & Contributor, Marty Vasquez

Unfortunately, it looks like they haven't gotten traction with multiple people, so it's almost destined that they need to find some way on their venture. They're kind of exhausted.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, here's what they've done. They've extended all olive branches, and they're surprised that no one's listening to their olive branch, or they're not - you know they're probably negotiating kindly. Sometimes that doesn't work. You know sometimes in order to procure peace you need war. I mean, that's the unfortunate reality of these things.

Bad HOA Producer & Contributor, Marty Vasquez

I suppose it is but it's the reality. Yeah, I mean you work in a form of war. I guess I live on a battleship.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

By the time you come to us, you know, diplomacy and peace discussions, that's been - yeah, we're done. We're not there anymore. We're beyond that.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah. The Pentagon.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

There you go. And so this individual is beyond that in my mind.

Bad HOA Producer & Contributor, Marty Vasquez

What a shame. All right, Marty, what do you got now?

Bad HOA Producer & Contributor, Marty Vasquez

That's it. Let's wrap it up and let's tease the next one. Common area disputes.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Okay. Oh, that's a fun one. And so common areas become also a lightning rod for disputes. Next episode, we're going to dive in deep on common areas, discuss what we see and how you as a homeowner can sort of fight back when you're dealing with a common area dispute. And often that's, you know, the association is failing to maintain a common area, a pool, a green belt, all of the above. So that's a really good one.

Bad HOA Producer & Contributor, Marty Vasquez

Don't mess with a pickleball court or a spa in Florida, you'll have some angry retirees.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

That might be true. Thank you for watching and we'll see you next time.