Q: Neighbors installed 3 foot long metal pipe wind chimes on their second story balcony.
The chimes violate the covenant against sound devices (which include bells, whistles, etc.) being installed on a structure or in a site. There is also a covenant that says a covenant cannot be waived. But the Architectural Control Committee (ACC), the covenant enforcement branch of our HOA, basically waived the covenant for the people with the chimes. Can we successfully sue the ACC for not enforcing the covenant? The chimes produce an annoying clanging-ringing sound that is almost constant as we live on a rather breezy bluff. This noise has ruined our enjoyment of our yard. We are retired and would like to use our yard. The people with the chimes are military career people and are almost never there. They have threatened to counter sue us if we sue them. We just want the ACC to do their job and enforce the covenant regarding sound devices. Do we have to sue the actual people violating the covenant? Please let me know what you think.
A: Every planned community is subject to rules called CC&Rs (covenants, conditions and restrictions). You should read them carefully and determine exactly what duties and powers the HOA has. If your neighbors are in violation, the HOA may have a duty to enforce to rules. If they refuse, they can be sued. This is expensive and time consuming. I would suggest that you first approach the neighbors and try to compromise. For example, maybe they would agree to remove the chime when they are away. It's not clear whether you have a claim against the neighbors directly. As an aside, if you did sue them on some nuisance theory or other, what could they counter sue you for if you have not broken any rules or laws? If this bothers you extremely, you should consider paying a lawyer to investigate and send a demand letter if appropriate.
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