Good morning Sheila. My name is ***** ***** I look forward to helping you.
You have two avenues through which you can pursue this and you can do so on parallel paths.
First, your HOA board has a fiduciary duty to act against this next door owner. The board members serve at the pleasure of the owners and have a fiduciary duty to all owners. Part of that fiduciary duty is to property enforce the HOA rules and regulations. So, send a letter to the board members by certified mail detailing the problem and demanding they act immediately to enforce the HOA rules by forcing this condo owner to comply. In the letter let them know that the failure to do so is likely to result in increased risk of loss of value of all owners' properties. Finally, inform them in the letter that if they do not act within a short specified period of time, you will have no choice but to file suit against the HOA and the individual board members. Let them know you will be seeking actual and punitive damages due to their either gross negligence or willful misconduct.
Two, you can go after this next door owner directly. Although they may feel as if they have the right to do whatever they please on their property, those rights are limited by the impact they may have on others. You have the right to file a private nuisance cause of action because their actions deprive your tenant of the peaceful and quiet enjoyment of your property which results in the deprivation of the habitability of your property. A private nuisance cause of action will entitle you and your tenant to both damages for the past deprivation of the full enjoyment of your property and an injunction prohibiting further interference with such enjoyment. If they then violate the injunction, they will be in contempt of court and subject to civil and/or criminal sanctions. In my experience, the mere filing of the suit itself leads to a resolution of the matter without actually having to get to the hearing. It's amazing the chilling impact being served with a summons that one is being sued does to cause them to cease and desist in their offending behavior.
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