Overview

A Santa Clara County jury recently ordered a San Jose homeowner to pay $8 million to the family of a nonverbal 11-year-old autistic boy after she sued the family, called the boy a “public nuisance,” and asked the court to stop his noise. According to the family’s cross-complaint, as Marina Pena reported in the California Post, the sounds came from vocal stimming while the boy chased bubbles in his own backyard on weekend afternoons. The neighbor described his behavior in court filings as “indecent” and, according to the family, asked his mother in front of him whether there was a cure for his condition. The court dismissed the neighbor’s case in September. The jury then found that she’d intentionally inflicted emotional distress on the family.

That case didn’t involve an HOA, but the same dispute arises inside California HOAs, where the complaining neighbor doesn’t have to file a lawsuit to make a family’s life miserable. Instead, all it would take is for a neighbor to file complaint after complaint with the HOA and demand that the HOA enforce the CC&Rs’ nuisance provision against the family of the disabled child. If the HOA were to side with the neighbor and fine, threaten, or restrict the family over disability-related sounds, the HOA would surely face its own liability under federal and California fair housing laws, on top of whatever liability the neighbor might be facing. And once the HOA knows a resident is harassing a family because of a child’s disability, it has to act or risk liability for failing to do so.

A child’s disability doesn’t give a family unlimited license to make noise at any hour, and it doesn’t give a neighbor or an HOA license to treat the child as a rules violation. Federal and California fair housing laws resolve that tension through reasonable accommodation, which requires HOAs to adjust how they enforce their rules when a resident’s disability calls for it. The $8 million verdict came from one jury, on facts that favored the family. It doesn’t bind any other court, but it does show how a California jury responds when a neighbor’s complaints about a disabled child’s sounds turn into a campaign against the child.

This Fact Sheet explains why the sounds autistic and other disabled children make during ordinary daily life don’t amount to a nuisance under the objective standard California courts apply, and when disability-related noise becomes extreme enough in volume, timing, or duration to raise a legitimate nuisance question. It explains when families should submit a written reasonable accommodation request to the HOA, even though no law requires one before the complaints start. It also covers how an HOA exposes itself to liability by punishing the family, when a neighbor’s campaign against a disabled child crosses into intentional infliction of emotional distress, and what the $8 million verdict does and doesn’t mean for families living in California HOAs.

Key Points

When the noise in a neighbor dispute comes from a child’s disability, two bodies of law apply at once. California nuisance law decides whether the sounds cross the legal line, while federal and California fair housing laws limit how HOAs can respond to a neighbor’s complaints and require HOAs to act once those complaints turn into harassment. Families who understand how those laws work together can stop an HOA from treating their child as a rules violation and can respond effectively when a neighbor’s complaints become a campaign against the child. The points below explain where the nuisance line falls, what HOAs must do once a neighbor complains, when a hostile neighbor becomes liable to the family, and how families should protect themselves from the first complaint forward.

• Ordinary disability-related sounds don’t amount to a nuisance in California HOAs. Under Civil Code 3479, courts measure nuisances by an objective standard, which asks whether a sound substantially and unreasonably interferes with a reasonable person’s use and enjoyment of the home. It doesn’t ask whether a particular neighbor finds the sound irritating, upsetting, or strange. Homeowners in HOAs have to tolerate the ordinary sounds of daily life, including children playing, crying, and laughing, even when those sounds carry into a neighbor’s home or yard. The vocalizations of autistic and other disabled children fall into that same category when they occur at reasonable times and for reasonable stretches (e.g., vocal stimming during outdoor play, the sounds a nonverbal child uses to communicate, or the noises a child makes during sensory overload). Sounds that differ from what other children make don’t become a nuisance for that reason alone. The Santa Clara case shows how the facts drive the question. According to the family, the boy spent weekdays from 8 a.m. to 6 p.m. at school and therapy, played in his backyard on weekend afternoons, and never went outside without supervision. [To learn more about when a neighbor’s noise does cross the legal line, read my Fact Sheet, “California HOA Noise Complaints: When Noise Becomes a Nuisance.”]
  • Disability-related noise that’s extreme in volume, timing, or duration can still raise a legitimate nuisance question. A child’s disability doesn’t remove the sound from the objective standard. Repeated screaming at 2 a.m. that keeps neighbors from sleeping, or hours of sustained noise every day, raises a different question than a child vocalizing during weekend afternoon play, even when a disability causes both. Courts haven’t drawn a bright line for when disability-related noise crosses into nuisance territory, so these cases are always fact- specific. But even when the noise does cross that line, a family can ask the HOA for a reasonable accommodation, and the HOA has to reasonably consider that request before it can impose discipline.
• Federal and California fair housing laws bar HOAs from punishing families because of a child’s disability. Autism qualifies as a disability under both the federal Fair Housing Act and California’s Fair Employment and Housing Act (FEHA). HUD’s Fair Housing Act regulation, 24 C.F.R. 100.201, lists autism by name as a covered impairment, and Government Code 12926 covers any mental or psychological condition that limits a major life activity, such as communicating or learning. The upshot is that when neighbors complain about a disabled child’s ordinary vocalizations, HOAs can’t treat those sounds as nuisance violations merely because the neighbors might demand it. If an HOA sends violation notices, imposes fines, threatens legal action, or restricts the child’s use of the backyard or the common area over those sounds, it exposes itself to its own fair housing liability, separate from anything the neighbor might face. HOAs also can’t retaliate against families who object, file a fair housing complaint, or ask for a reasonable accommodation. [To learn more about how fair housing laws limit what HOAs can do, read my Fact Sheet, “HOA Discrimination in California: Fair Housing Act (FHA) and FEHA Protections.”]
  • Fair housing laws also require HOAs to act when a neighbor harasses a family because of a child’s disability. HUD’s Fair Housing Act regulation, 24 C.F.R. 100.7, makes HOAs directly liable for failing to take prompt and reasonable corrective action when they have notice that residents are harassing other residents because of a disability and have the authority to stop it. HOAs get that authority from the nuisance provision that nearly all CC&Rs contain, which binds every resident, including harassing neighbors. Good-faith complaints about noise aren’t harassment. Disability-based harassment might include, depending on the circumstances, behaviors such as aggressively confronting families, demanding that children stay out of their own backyards, making remarks about children’s conditions in front of them, and flooding HOAs with complaints meant to drive families out of their communities or otherwise ostracize them. Once families report that conduct to their HOAs in writing, HOAs with nuisance provisions have to investigate and use the same enforcement tools against harassing neighbors that they’d use against any other nuisance (e.g., warning letters, hearings, and fines). [To learn more about when HOAs have to step in on neighbor disputes, read my Fact Sheet, “Does Your California HOA Have to Investigate Nuisance Complaints?”]
• Reasonable accommodation is how fair housing law resolves the conflict between a child’s disability and an HOA’s nuisance rules. A reasonable accommodation changes how the HOA applies a rule to a resident whose disability makes that change necessary. In noise disputes, that can mean the HOA agrees not to treat a child’s disability-related vocalizations as violations, withdraws pending violation notices or fines, or works with the family on practical steps that address the neighbor’s legitimate concerns without punishing the child for his or her condition. Families don’t have to request an accommodation before anyone complains. Once neighbor complaints start piling up, though, families should submit a written request that identifies the child’s disability, explains how the disability causes the sounds, and asks the HOA to stop treating those sounds as violations. That request puts the HOA on notice, creates a record, and makes it much harder for the HOA to later claim that it was simply enforcing its nuisance provision the same way against everyone. The HOA can ask for limited verification that the child has a disability and that the request relates to it, but it isn’t entitled to detailed medical records. An HOA can deny an accommodation only when it isn’t reasonable, such as when granting it would threaten other residents’ health or safety. [To learn more about what HOAs can and can’t demand when residents request accommodations, read my Fact Sheet, “California HOAs and Mental Health: Accommodations and Homeowner Rights.”]
• Neighbors who target disabled children can face liability for intentional infliction of emotional distress. A cause of action for intentional infliction of emotional distress (IIED) requires extreme and outrageous conduct (i.e., conduct beyond all bounds of decency tolerated in a civilized society), an intent to cause emotional distress or reckless disregard of the likelihood of causing it, and substantial and enduring emotional distress that results from the conduct. That’s an exceptionally high bar, and most neighbor-to-neighbor or HOA-related disputes don’t come close to clearing it. Deliberately targeting a family because of a child’s disability, however, is exactly the kind of conduct that can result in a successful IIED cause of action. For example, in the news story that prompted me to write this Fact Sheet, according to the family’s cross-complaint and court records, the Santa Clara neighbor asked that the boy no longer be permitted to play in his own backyard, asked his mother in front of him whether there was a cure for his condition, complained to the family’s landlord about his “strange noises,” and then sued the family to have him declared a public nuisance. The jury awarded the family $8 million, a good part of which stemmed from their IIED claim. [To learn more about why most emotional distress claims fail and what it takes to win one, read my Fact Sheet, “Emotional Distress Claims in California HOAs: Why They Frequently Fail.”]
  • The Santa Clara verdict doesn’t make every complaint about a disabled child’s noise a basis for liability. Neighbors can raise good-faith noise concerns with their HOAs, and HOAs can look into them, even when a child’s disability causes the noise. In the lawsuit featured in the story, the family’s IIED claim rested on the neighbor’s conduct toward the boy and his mother, which went well beyond any reasonable complaint about noise. For example, a good-faith report of repeated late-night screaming to an HOA, followed by letting the HOA handle it, wouldn’t support an IIED claim.
• Families facing neighbor or HOA complaints over a child’s disability-related sounds should build a record from the first complaint. HOA members facing the type of harassment described in the Santa Clara lawsuit should put the HOA on written notice of the child’s disability and of any harassment by the complaining neighbor, and they should save every complaint, message, text, photo, or video they might have of the interactions with their neighbor. Whenever feasible, avoid directly confronting the complaining neighbor because every exchange gives the neighbor a chance to recast the family as the aggressor. Regardless, families should always respond to every violation notice from the HOA in writing.
• If your HOA or a neighbor targets your family over your child’s disability, call the HOA attorneys at MBK Chapman. The HOA attorneys at MBK Chapman are among the most respected homeowner-side HOA lawyers in California. They know how to stop HOAs from punishing families over a child’s disability and how to force HOAs to deal with neighbors who harass those families.

California HOAs can’t treat a disabled child’s sounds as a CC&R violation just because a neighbor complains. The ordinary sounds of a child’s disability don’t meet the objective nuisance standard, and when the noise does become a legitimate problem, fair housing laws require HOAs to consider a family’s accommodation request before imposing any fines. Those same laws require HOAs to use their nuisance provisions against neighbors who harass families over a child’s disability. The Santa Clara neighbor’s campaign against a disabled child cost her $8 million.

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About Michael Kushner

Michael Kushner is a California attorney with over 30 years of experience representing homeowners in disputes with their HOAs. He is widely regarded as California’s leading homeowner-side HOA attorney, and has built one of the state’s most prominent law practices dedicated to holding HOAs accountable under the Davis-Stirling Act and California law.

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