Property Management Professionals (PMP)

Can homeowners associations stop noisy retailers?

I live in a community adjacent to a small commercial center with several retailers, including a dry cleaner and several restaurants. The dry cleaner is a fairly new tenant and the noise of the machines creates a nuisance during daytime hours.

One of the restaurants has a bar that is open really late on the weekends, creating a nuisance at night.

I have brought this issue up to our HOA since this is a clear violation of our nuisance rule in our CC&Rs, but they are telling me that this is not the association’s responsibility.

How can this not be an association issue?

As a homeowner who pays into the association every month, the association should represent the residents, enforce our CC&Rs and protect our quiet enjoyment of the community. Do you have any advice on how to handle this?

—Shawn P.

Homeowners associations’ scope of responsibility and authority is often misunderstood, so thank you for asking this important question and giving me the opportunity to help clarify.

The primary purpose and obligation of a homeowners association is to maintain and protect the value and integrity of any and all common areas, enforce the community’s governing documents, which include bylaws, CC&Rs and rules & regulations, and oversee the community’s fiscal responsibilities.

Simply put, items that fall outside of this scope are most likely beyond the responsibility and authority of the association.

I am often known for saying that homeowners are the association, and while I strongly believe this to be true, there are important limitations regarding not only what issues are appropriate for associations to become involved in, but also which matters the association has the authority to pursue.

As it relates to retailers adjacent to, or in close proximity of the community, I believe this falls outside of the association’s responsibility and authority.

Although I have not had the opportunity to review your specific association’s governing documents, the majority of association CC&Rs do have a nuisance provision.

However, these provisions, as with all community rules, are typically only enforceable by the association within the legal boundaries of the community and only enforceable against the owners who purchased within the community.

Nuisances or disturbances that fall outside of the community boundaries, such as the retail noise concerns you reference, should be directed to the appropriate municipal authorities for enforcement.

Maintaining the integrity of the association’s common area elements, overseeing the association’s fiscal obligations and enforcing the community’s rules, when done correctly, will occupy the majority of the board’s time.

Given the association’s limited resources, both in terms of human capital and monetary constraints, boards are encouraged to concentrate on their primary duties and avoid distractions that might fall outside of their scope of authority.

That said, I do understand that many owners feel strongly that there are instances, such as speeding on nearby public arterial streets or nuisances created by adjacent commercial centers that impact the entire community, and should therefore be addressed by the association.

While I do not believe the association has the authority or the responsibility to directly address these external community issues on behalf of the membership, there are things that the association can do to assist the membership in obtaining the information and tools necessary and to help facilitate a homeowner driven effort to address their concerns with the appropriate parties.

For instance, as it relates to speeding concerns on public streets or landscaping concerns at public parks, I have seen association boards offer to assist in coordinating meetings at the community’s private clubhouse or community recreation centers between municipal officials and the membership to discuss residents’ concerns and potential resolutions.

In essence, the association assumes a passive role, but empowers the homeowners to resolve their concerns directly with the appropriate parties.

This approach benefits all involved, allowing the association’s board to concentrate on their primary duties and responsibilities, while at the same time assisting the membership in working toward a resolution regarding outside concerns impacting the community.

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