Thank you for your kind patience, Kathleen,
I am sincerely XXXXX XXXXX have been subjected to a neighbor such as the one you have living above your unit. He is obviously malicious and his actions towards you prove this.
I would suggest that you take the following steps, even though you may have taken them already,
1. Each night when he makes this noise when "air testing for smoke", I would like you to record it. This will establish a pattern;
2. Call the police every night that he makes this ungodly noise so that you have police reports to back up your story
3. Write a letter to both the HOA and the neighbor upstairs. This will put the HOA on notice and they cannot claim ignorance at some later date. You will also be putting the neighbor on notice that his noise is very disturbing, you are unable to sleep, and that his noise is causing a "nuisance". I know that he will not stop, but this step is necessary because he, too, cannot claim at some later date that he was unaware that he was disturbing you.
4. If the local police do not do anything, including giving him a citation and a warning, go straight to the Office of the District Attorney and file a complaint there. Speak to someone in authority, tell them what you have been subjected to, that you have become sick over this, and neither the HOA, nor the local police will do anything.
Your neighbor is guilty of creating a nuisance which is a misdemeanor under the California Penal Code and the HOA which refuses to do anything to abate this nuisance unless other homeowners complain is also guilty for allowing it to continue unabated. I am reprinting the relevant sections of the California Penal Code for your reference and I have underlined certain portions to bring your attention to that specific part of a section.
You will let the District Attorney hear the tape of the noise the neighbor makes every night and you will ask the District Attorney to prosecute him.
In addition, you can maintain a civil action against the neighbor asking for an injunction, enjoining the neighbor from continuing his activities, and demand damages. If you have a report from your doctor stating how this has negatively affected your health, you can claim an even a greater amount in damages. If the neighbor violates the Injunction, he will be in Contempt of Court which is punishable with jail time at the discretion of the Judge. And you will be able to show that his actions were willful, intentional, and malicious because you put him on notice and he refused to stop. It is important that you take the steps I listed and file your lawsuit against him before he sues you so that your lawsuit will not be viewed as retaliatory action against him because he sued you first. Any lawsuit he files against you will make him look like he is retaliating against you!
California Penal Code Section 370 defines a public nuisance. Section 371 states that it is no less a public nuisance because it affects individuals unequally. For example, the nuisance affects you more because the neighbor lives above your unit. A neighbor living several hundred feet away may not have the same experience that you are having with the noise, but that does not make it less of a nuisance
"370. Section Three Hundred and Seventy. Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a public nuisance."
"371. An act which affects an entire community or neighborhood, or any considerable number of persons, as specified in the last section, is not less a nuisance because the extent of the annoyance or damage inflicted upon individuals is unequal.
Section 372 makes the HOA liable for failing to take any action to stop this neighbor fro creating a public nuisance. Notice, the Statute does not specify any particular number of people before the HOA is expected to act to abate the nuisance.
"372. Every person who maintains or commits any public nuisance, the punishment for which is not otherwise prescribed, or who willfully omits to perform any legal duty relating to the removal of a public nuisance, is guilty of a misdemeanor.
California Penal Code §373a provides as follows:
"373a. Every person who maintains, permits, or allows a public nuisance to exist upon his or her property or premises, and every person occupying or leasing the property or premises of another who maintains, permits or allows a public nuisance to exist thereon, after reasonable notice in writing from a health officer or district
attorney or city attorney or prosecuting attorney to remove, discontinue or abate the same has been served upon such person, is guilty of a misdemeanor, and shall be punished accordingly; and the existence of such nuisance for each and every day after the service of such notice shall be deemed a separate and distinct offense, and
it is hereby made the duty of the district attorney, or the city attorney of any city the charter of which imposes the duty upon the city attorney to prosecute state misdemeanors, to prosecute all persons guilty of violating this section by continuous prosecutions until the nuisance is abated and removed.
Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,
If you receive a Customer Satisfaction Survey from JustAnswer, Please rate a 10 as it gives me a greater opportunity to assist other customers on this website and is greatly appreciated,
Thank you for allowing me the opportunity to assist you,