Question: Our HOA declaration contains a nuisance clause. Our neighbors installed a whole-house power generator within 8 feet of our fence and 18 feet from our master bedroom window. We were not aware of the unit until we lost power and the unit instantly fired up and shook us out of bed. We cannot sleep when the unit is running because of the noise and vibration from the unit.
The generator is rated for 67 dBA of noise from the front panel and more noise from the other sides. (We have monitored the noise from the weekly maintenance cycle at 65 dBA, but we have not measured the much louder sound level when the unit is operating under load.)
Our neighbor could locate the unit around the back of the house (near their pool pump), but they have chosen the most convenient location for their installation. They did not seek approval from the board prior to installation. Our declaration requires owners to obtain board approval prior to any exterior changes and provides remedies for violations, including injunctive relief to require the owner to remove or alter the installation if a change is made without first obtaining board approval. Our neighbors claim that they have a medical need for emergency power. We do not wish to deny them the right to generate power, but our neighbors have a duty not to unreasonably interfere with other persons’ use and enjoyment of our property.
We are asking the board for relief in the form of noise and vibration reduction (sound enclosure and anti-vibration mounts) or relocating the generator to the back of their house and away from our bedroom window. Our neighbors had agreed to a demonstration of the unit’s operation and to provide a sound enclosure, but they later reneged on both when the board indicated it would approve the unit without either. The board has met privately to approve the installation twice, against state HOA laws for meeting notices.
Can the board approve this generator despite a prohibition on permitting any use or practice that interferes with our peaceful possession and proper use of our property (e.g., our ability to sleep in our master bedroom)? — B.P.
Answer: You seem to have two separate issues. One issue is your neighbor’s unauthorized installation of a generator, and the other is the issue of the nuisance that generator creates when it operates.
It is extremely common for HOA communities to have architectural controls, and those architectural controls often include regulations relating to the installation of generators. One thing to be aware of is that, under the HOA Act, architectural controls are only enforceable to the extent that the restrictions to location, size, type or appearance are specifically stated or reasonably inferred from the declaration or published guidelines and standards. Many HOAs make the mistake of relying on general language in their declaration, which states they have broad approval authority, only to find they have difficulty enforcing their approval decisions later on because they never promulgated specific guidelines relating to construction, installation or design. Even though the generator was originally installed without approval, your association would have the right to approve it retroactively at any time — so, whether and how the generator was initially approved is not likely to be relevant.
Your second complaint is that the generator, when it operates, is so noisy that it constitutes a nuisance. A nuisance is any use of a person’s property that is a disturbance or annoyance to the use of another person’s property. Usually a nuisance would be a sound, smell, or even something somewhat physical, like smoke, that is so pervasive that it would interfere with the peaceful use of the property by a person with ordinary sensibilities. That is, nuisance is not typically judged on whether you, specifically, find the behavior to be an annoyance, but whether an ordinary person would find it to be unreasonably annoying.
It’s reasonable to assume that noise made by a generator, if constant and pervasive, could constitute a legal nuisance. However, the intermittent nature of the sound might make your claim more difficult. I suspect that the weekly maintenance occurs during the daytime and that it only lasts for a handful of minutes, limiting its effect on your life, and that the generator will only run full-time during extraordinary events — and during those events, I think it can be argued that generator noise is the type of noise that an ordinary person would tolerate. Those arguments are going to be your primary challenges in bringing a claim against your neighbor in order to force them to move or insulate the generator.
Ryan Poliakoff is a co-author of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living” and a partner at Backer Aboud Poliakoff & Foelster, LLP. Email questions to firstname.lastname@example.org. Please include your hometown.