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There’s an old saying that anyone can sue anyone for anything, but there’s no guaranty that he’ll win. Case in point: eight neighbors who live in a community governed by a homeowners association. Neighbor A learned that neighbors B, C, D, E, F, G & H have finished attic space in their homes, but no certificates of occupancy for the space. He brought suit against the neighbors for creating a private nuisance, and for breach of the homeowners association covenants and restrictions that require owners to comply with all fire and zoning ordinances. “Can he really do this?” asked his incredulous neighbors.

The trial court said “no.” It ruled that plaintiff had not alleged and cannot establish that the neighbors’ finished attics intentionally and unreasonably interfered with plaintiff’s use and enjoyment of his own property, so there was no private nuisance. It further found that the neighbors, who were not members of the homeowners association board of directors, had no authority to enforce the community’s covenants and restrictions or any Town code or State code. It also concluded that the alleged violations of the community’s by-laws do not give rise to a private cause of action. But there’s one thing the plaintiff did accomplish: he successfully alienated his neighbors.

Molander v. Pepperidge Lake Homeowners Association et al., 25 Misc. 3d 1231A; 906 N.Y.S.2d 774 [2009], mod, aff’d, 2011 NY Slip Op 2641, [2d Dept Mar. 29, 2011].

If you find yourself in a similar situation, please contact Linda Calder or Steve Taitz.

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