Need Help: CC&Rs vs. City/Muni Rules

Hello everyone!

I live in a town-home here in Los Angeles area and am experiencing some issues with one of my neighbors. They have kids that love to play basketball at essentially all hours of the day. Towards the beginning, they were very considerate. The children were supervised, it was during only certain hours, etc.

Now, they'll be outside playing in the early hours of the morning or well into the evening. The noise has become a complete nuisance as they love to play directly outside our bedroom window. On top of that, the balls constantly crash and slam up against our garage door. There have been some instances where they've collided with parked vehicles as well.

Now, I've gone ahead and spoken with the parents and tried to work something out with them -- to no avail. They essentially stated that city/municipality rules enable their kids to be out playing at those precise hours(8-7 if I recall correctly).

Here's where it gets interesting.. Our CC&R's seem to explicitly address this:
"... prohibited is any activity which may cause damage to the trees, planted areas or the building structure (wall, window,...). This includes, but is not limited to, ball games (soccer, tennis, volley ball...) etc." It also states a little below that "Nor can anyone do anything that will cause unreasonable embarrassment, disturbance or annoyance to other owners."

My question to you good people: Which takes precedence? From what I understand, the CC&R's CAN be more restrictive but this may not apply across the board to all states. Any advice and/or insight would be greatly appreciated.

Thank you.

The kids' parents signed a contract (the CC&Rs) agreeing with its restrictions. In your case, I believe your CC&Rs prevail.

Try one last time to speak with the parents, if to no avail, write them a letter and copy your board or property mgr. saying your household wants to regain peaceful enjoyment of your home or words to that effect. Point out the CC&R that's being violated.

Hi Tim! Thanks for the reply.

In your last example.. wouldn't the Association rules need to be complied with? Since they're more restrictive than the city regulations. Unless I'm misreading it.

Well, Remy, then you can try what Melissa & I suggest and if no compliance with your restrictions, go to the next open board mtg. (required in CA) and state your complaint out loud. Take neighbors with you if you can.

You do not need to identify the Prez. Just ask the Board to please enforce your governing docs, specifically, CC&R Article x, Section xxx.x.

The prez has no authority over other directors note does he have the right to ignore your CC&Rs.

Also, get a copy of the HOA's contract with the PM or Mgt. Co. there might be a clause in it which states the PM must comply with your governing docs and state law. It's in our contract with our MC.

Perhaps I could have said it better.

If the city says no mowing prior to 9 am but the Association says no mowing until after 6 am then there is a conflict between the CC&Rs and the city ordinance. Therefore, the city ordinance is the one to be complied with and lawn mowing may not start until 9 am.

I disagree Aug., that the O.P. could be accused of discriminating against children or "familial status":

"Our CC&R's seem to explicitly address this:
'... prohibited is any activity which may cause damage to the trees, planted areas or the building structure (wall, window,...). This includes, but is not limited to, ball games (soccer, tennis, volley ball...) etc.' "

"It also states a little below that" 'Nor can anyone do anything that will cause unreasonable embarrassment, disturbance or annoyance to other owners.' "

I don't see this as ambiguous or vague, Aug.

In addition, the OP said nothing about living next to a playground. It seems pretty clear that the noise & banging is in the HOA.

I also see no need for Remy to get a lawyer just because the prez refuses to enforce the CC&Rs. What about the rest of the Board?? Or, Remy, are they terrified of the president?? He has absolutely no power over them unless they permit it.

With Sheila, Remy, I again urge you--if a letter to the Board via the PM doesn't help-- to attend the next open board meeting, with neighbors if possible and a request that the Board enforce your CC&Rs.

Kerry, I agree that Remy should start with a letter to the Board and then presenting her case in person at the next board meeting. Document everything. I believe an attorney would advise these steps as the first ones to take as well.

I am asserting that a violation of HUD law is a possibility. It is not a certainty. At my current HOA, a few years ago an owner barked at a kid playing in the parking lot on a scooter. A violation notice was sent to the kid's parents. The parents responded: Where on the grounds should my child play? No response from the HOA. It exploded from there, with a full HUD audit. The bills from the (incompetent, AFAIC) HOA attorney and the settlement cost with the plaintiff were so high that a special assessment was ordered. According to my neighbors, who seem savvy on real estate law, the HOA should never have dug into an indefensible position.

I'd like more facts about this playing area and how much control of the Board the President has.

Appreciate all the replies! Thank you.

So the CC&R's that I quoted come out of our 'Rules and Regulations' manual. It includes a summary of the CC&R's as well as the By Laws. I took the liberty of speaking w/ our cities Code Enforcement Agency and they confirmed that the CC&R's can be more restrictive that what the city and/or municipality states(this is per state law).

Now.. with that said, here's where the issue arises. AugustinD you alluded to this very well -- the discriminatory aspect. Here's how it's written in the 'Rules & Regulations':

"
9. Restrictions:
The following restrictions are only a summary of the restrictions found in your CC&R's. The CC&R's apply to everyone and any violation is subject to a fine. The restrictions are a part of the property and can not be separated from your unit. When you purchased your unit, you fell automatically under these restrictions. The restrictions are intended to preserve the harmony between neighbors and to preserve property values. The association is obligated to enforce them and asks for your cooperation.

-> Children's Activities:
Each owner is responsible for the behavior of children residing in or visiting their unit. Children must exercise caution when playing in any of the common areas, and are prohibited from playing near the gates, parking areas or trash areas. Also prohibited is any activity which may cause damage to the trees, planted areas or the building structure (wall, window,...). This includes, but is not limited to, ball games (soccer, tennis, volley ball...) paint ball, flyer saucer, etc.
"

So I guess there's an added dilemma.. The first paragraph clearly says it applies to everyone. Then it goes specifically into 'Children's Activities'. I guess at this point you could argue it either way, and this is where it could get potentially nasty.

To answer some of your questions:
@TimB4: Thank you for the clarification good sir! I would also imagine they've been told about the noise before. Why else would they be familiar with it? Unless they really wanted to know..

@AugustinD: We don't live next to a play ground. This is exclusive taking place within the HOA(in front of the units, along the driveway, and near the parking spaces).

@KerryL1: That sounds like a great idea! I'll send out a letter -- not sure how much bite it could have but it's a sensible first step. The pres definitely has no authority over them, but I'd imagine nobody wants to challenge it since they're all 'buddy buddy'.

@SheilaH: I'll definitely have to look into what time they can and can't be out. There are a couple of neighbors that have raised some eyebrows to it, but nobody has decided to take an initiative. Hoping more will step up..

Ultimately, I think the board CAN be swayed. But the big issue here is whether or not it's discriminatory. Or can at least be viewed in that light.

RemyM, thank you for elaborating. For me here in internet land, it's an interesting situation.

I agree this has the potential for getting nasty. I think RemyM nailed it when she or he noted that the CC&Rs single out kids. It sounds like she or he is aware that what she or he is asking also may single out kids. Googling turns up discussion like the following:
~~~
Generally, children must be permitted to make a reasonable amount of noise for their age, the activity and the time of day. Babies cry, and kids run and scream when playing outside, and in most cases, they shouldn’t be punished for doing so.
What Does Familial Status Discrimination Look Like? A housing provider shouldn’t do any of the following:
-- Make discouraging statements, such as “there are no kids here” or “there is no place to play”
-- Tell children to play at the park, or yelling at them every time they are outside
-- Confiscate toys
-- Evict a tenant because their baby cries in the middle of the night
-- Evict a tenant because she is pregnant, or make her move to a larger unit
-- Issue warnings when children make noise during the day
-- Designate adult-only parts of a complex

See http://housing.org/fair-housing/familial-status-discrimination/
~~~
From a press report on a HUD settlement in Kentucky: The written Park Rules at Brown’s Mobile Home Park included discriminatory and illegal provisions like “families may have no more than two children,” “there is a $5.00 additional (rent) charge for each child,” “children must be kept on individual lot,” “children are not allowed to play or ride in front of the office or the park,” “children should be off the street by sunset,” and “all youth, 16 years of age and older must be off the street by 10:00 p.m., all youth under 16 years of age must be off the street by dark.” These restrictions against families with children violate the fair housing laws of Louisville, the State of Kentucky, and the United States.

See http://www.fairhousing.com/index.cfm?method=page.display&pagename=releases_kfhc03-11-03
~~~

At this point I am not sure I would even consider a letter to all owners saying if one of the owner's residents or visitors damages xyz, I will be seeking payment for the damages. The latter goes without saying. It could be cited as an effort to restrict kids' activities

HUD has summaries of its rulings, broken down by category like "discrimination on the basis of familial status." Also many states have fair housing statutes of their own. It may be worthwhile to do a search for these rulings. It might help narrow your arguments.

If I were a director at RemyM's HOA, and based on a study of HUD settlements, I would pursue amending the part RemyM quoted as follows:

"{} Activities:
Each owner is responsible for the behavior of {all people} residing in or visiting their unit. {All residents and visitors} must exercise caution when playing in any of the common areas, and are prohibited from playing near the gates, parking areas or trash areas. Also prohibited is any activity which may cause damage to the trees, planted areas or the building structure (wall, window,...). This includes, but is not limited to, ball games (soccer, tennis, volley ball...) paint ball, flyer saucer, etc."

Once this is thusly amended, RemyM's chances of prevailing on the "no ball playing" argument seem to me to be much higher.

On the other hand, discussion above alludes to the acceptability of children making noise during the day. To me this suggests that restrictions for evening play (by adults or children) may be acceptable. I concur with TimB4 and RemyM that the board president has done his homework regarding when his kids are allowed to play. One can search the LA municipal code at http://www.amlegal.com/codes/client/los-angeles_ca/ . Click on "municipal code." The Board President may be using "Chapter XI Noise Regulation" for his reference to the hours when loudness is allowed. But this section of the LA municipal code might give RemyM some arguments as well.

This article by an attorney might be helpful, regarding documenting noise levels at a HOA and a device to do so:
http://condolawguru.com/2016/05/noise-transmission-new-information-from-a-client/

Some HOAs ban basketball hoops, because of the noise. Google for many complainants like RemyM and what they did.

Regretfully: I would be on edge if anyone were bouncing a basketball next to my town home way early in the morning to way late in the evening, or even for a couple hours each day at any time. I might very well go find a noise meter to make some measurements, or I would be thinking of moving, and if my age allowed, to a 55+ gated community.

I still disagree with Aug., Remy. The CC&Rs prevail. There may be some confer about the language seeming to discriminate against kids, but, Remy, I'd still see if you can get the Board to remedy this noise nuisance. Kids crashing basketballs against your garage doors is not the same thing as a crying baby!

Restricting where they play is not "punishment." I'm afraid that Aug. cites extreme cases to make his point and, frankly, Remy, I don't see how it helps you and perhaps other neighbors who these kids and their inconsiderate father understandably annoy.

James makes sense to me, Remy.