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Andrea, Esq.
Andrea, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 12554
Experience:  I have practiced law for 25 yrs. with an emphasis on real estate, business law, criminal defense and family law.
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I am still having problems. I went to the HOA meeting and

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I am still having problems. I went to the HOA meeting and they said that the owner upstairs could only contact me through the HOA. The owner said that he had paid someone to drive past my condo five times a day to take pictures to see if my windows and curtains were open or closed. the Hoa told him to desist. Two days after the meeting, on 9/25 the noise started. The noise appears to be air testing for smoke and is loud. This has been going on every night since then and is intermittent all night long. I am so sleep deprived. Two days ago I called the police department and they told me to call when it happens. I called the nonemergy line at 1 AM and told them what I had been told earlier. They said that they would send someone to talk to him. I don't know if they did all I know is the noise went on every half an hour until 8 AM. What do I do?

Hi, Kathleen, my name is XXXXX XXXXX I will be glad to assist you in any way that I can, but eed a bit more information, if you do not mind,



Q. Why did the neighbor upstairs have someone drive past your house 5 times a day, of what value was it to him to know whether your curtains were open or closed ?


Q. Has the HOA told him to cease and desist air testing for smoke ?



Q. What exactly is "air testing for smoke" and why is he testing the air ?



Thank you and I look forward to your reply,



Customer: replied 4 years ago.

The neighbor previously from being told not to contact me, told me that he expected me to keep all my windows and curtains open all of the time. Obviously, with winter coming this is not a reasonable request.

No the HOA has not told him. When I complained at the beginning I was told that I had to go to mediation before the HOA would do anything. I was also told that for a noise complaint, there had to be 2 units affected.

Since, the owner upstairs is gathering data to sue me, obviously mediation is not going to work.


When the owner upstairs bought the condo, he was told that there was an issue of second hand smoke. This was nothing that i did but the way the building was built. I have had contractors come in to seal the lights , pipes going into the walls etc. According to my City, smoking in Condos is allowed and also according to the CCRs. Even though he knew of the issue, almost from the beginning, the owner, an experienced real estate agent has been threatening to sue. During the day I keep some of my windows opened so air testing at that time would not be as high. At night, I keep my windows closed since the police has said that it wasn't safe to leave them open at night for a downstairs unit. If the owner isn't doing air testing, then it is plain harassment.


Thank you for your reply, Kathleen, and your additional information,


I am preparing your Answer and will post it in a few minutes, I have several courses of action which you should pursue. While I am typing up your Answer, please tell me the following,



1. Why should you be obligated to keep your windows and curtains open ?


2. Is the neighbor saying that you smoke and he is going to sue you for his being subjected to second hand smoke ?


3. How long has he been air testing for smoke and why does it have to be done at night ?


Thank you,



Customer: replied 4 years ago.

Keeping the windows would lessen the amount of smoke getting into his units. He said that since I have heavy drapes which would block the air flow, that they need to be open too.

After he bought the unit, he made renovations which were supposed to have stopped the problem and it didn't. He said that he would sue me for the cost of the renovations which doesn't make sense since he probably got the unit for below the going price. he is also going to sue me for lost rental income and punitive damages.


They have been testing since 9/25. During the day, I keep windows open and have air purifiers going. At night, I have my windows closed for safety reasons and therefore the levels of smoke would be higher. I don't smoke when I sleep, therefore the fact that I am being kept up all night and stressed out would probably give higher readings.

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.




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Andrea, Esq. and 3 other Real Estate Law Specialists are ready to help you

Thank you so much for the Excellent Service rating, Kathleen, and the bonus, I appreciate both greatly, but what I appreciate even more is the trust you placed in me to help you find a solution to a very troublesome situation, If you have any further questions, please do not hesitate to let me know and if you have questions in the future, please feel free to ask for me by typing my name at the beginning of your question, like this,


"For Andrea only .........."


And I will be sure to get your question, In the meantime, please keep me informed of your efforts and let me know if you come up against any stumbling blocks and we can face them together,


Thank you for allowing me to be of service,




Kindest Regards,