Question: My husband and I live in a quiet residential neighborhood in Davis. At least it used to be quiet. Our neighbor has remodeled his house to accommodate guests and now advertises his rooms on travel hosting websites.
There are people coming and going at all hours of the night. Guests of his will frequently have loud conversations outside his front door (which is close to our bedroom window) as they figure out how to get in. Since the rental activity, the traffic and congestion on our tiny street have picked up. It is very disturbing not only to us but also to other neighbors. The simple fact is that people behave differently when they arrive at a commercial establishment than when they arrive at someone’s home.
My neighbors and I have raised our concerns with certain members of the city council. They have been receptive to our complaints, but they have noted that a number of other communities are facing legal issues as they try to wrestle with these problems. In light of anticipated legal issues, they don’t seem too eager to have the city take a position. One person at the city we spoke with suggested we look at our “CC&Rs.” The problem is getting out of hand, and I am not sure what to do.
Answer: As the person at the city suggested, you may be able to find a remedy in the “CC&Rs” associated with your residential development. In contrast to public remedies through city ordinances or zoning restrictions, “CC&Rs” or “conditions, covenants and restrictions” may offer a private way of prohibiting your neighbor from doing what he is doing.
CC&Rs are the rules or a common plan that apply to residents within in a certain community. The rules are set forth in a real property “declaration” that is recorded in the real property records. Typically, the declaration is established by an owner of property before the real property is divided. The rules within the recorded document “run with the land” and are binding on successor owners. So while you and your neighbor might not have a written contract between the two of you, the CC&Rs are rules that both of you — when purchasing the property — agreed to adhere to.
There may be a rule in the CC&Rs that prohibits the type of commercial activity in which your neighbor is engaged. In residential subdivisions, there are often rules that the property shall be used for “residential purposes only” or barring use “for hotel or transient purposes.” You have to have the CC&Rs carefully reviewed. California courts have enforced rules of this type to prohibit the use of a single-family dwelling as a boardinghouse.
In addition to a review of the CC&Rs, it may be useful to look at your neighbor’s activity as a nuisance. The law defines a nuisance as something that is “indecent or offensive to the senses” that “interfere(s) with the comfortable enjoyment of life or property.” Depending on the level of disruption, you may be able to make an argument for why this activity is a nuisance. If you are capable of making such a showing, then the court can issue an order to abate the nuisance.
Enforcement of the CC&Rs or legal claims for nuisance are private remedies, which means that you will need to file a lawsuit yourself in the superior court to obtain court orders. If you retain an attorney, which would be well advised given the complexity of these proceedings, you will likely need to front the costs for attorney’s fees. There may be a legal theory under which attorney’s fees might be awarded, but legal fees are usually awarded at the end of litigation. Perhaps banding together with your neighbors might be a way to spread the cost and increase your ability to litigate the issues.
With respect to the city, it may be possible for it to take some public action on this issue without going so far as places like South Lake Tahoe, which passed an outright ban. The city could enact an ordinance requiring permits for short-term rentals and place conditions such as the number of occupants, hours of use, and noise limits. I would not give up and continue to press the issue.
You may be able to address this situation with private remedies, but you will need to come up with the costs for legal help. So don’t be so quick to let the city off the hook. We have smart people in city government who are dedicated to making this a better place. Put them to the test to find a solution that works for all of us.
Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.
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