By Eoin Gubbins
Across virtually every commercial real estate asset class, there is a growing trend towards the creation of mixed-use environments. This shift is fueled by investors seeking greater flexibility and diversification in their projects, and it shows no sign of slowing. However, with this blending of uses comes a higher risk of tenant/occupant conflicts. Understanding how to proactively manage and mitigate nuisance complaints is now more critical than ever for property owners and landlords.
The Rise of Nuisance Complaints
Traditional boundaries between property uses are blurring. Professional office buildings now house not only traditional office tenants, but also medical offices and creative workspaces. Amenities have evolved to include rooftop decks, dog-friendly environments, gyms, and recreational and event spaces.
Multifamily residential buildings are seeing similar shifts. With more people working remotely, residents are spending more time at home, and ground-floor spaces are often leased to gyms, yoga studios, restaurants, coffee shops, and even small-format grocery stores. Retail centers—once solely commercial—are being transformed into vibrant mixed-use neighborhoods that integrate residential living directly into the shopping environment. Even hotels have followed suit, with many new developments incorporating high-end condominiums.
While these trends create dynamic and appealing communities, they also introduce new challenges: noise, odors, smoke, vibrations, and pet-related activities can give rise to complaints.
Understanding Nuisance Claims Under California Law
Under California law, a nuisance is defined as "[a]nything that 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" (Cal. Civil Code § 3479).
Disputes arising within a development are typically classified as private nuisances rather than public nuisances—but they could be both depending on the facts of each case. In every circumstance, it is better to be in front of these issues and to be proactive instead of reactive.
Proactive Strategies for Landlords and Property Owners
Several key strategies can help reduce the risk of nuisance complaints:
1. Separation, Due Diligence, and Use Management. The best way to address nuisance issues is to prevent them from arising in the first place. Where possible, uses should be physically separated by design—creating natural buffer zones between potentially conflicting/disturbing activities. Where physical separation is not feasible, tenants and future occupants should understand the potential impacts and do their due diligence in advance of lease execution. Landlords and property owners should try to understand intended future uses at the outset so as to anticipate and manage potential conflicts.
2. Leases, CC&Rs, and Rules and Regulations. Clearly drafted leases, covenants, conditions, and restrictions (CC&Rs), along with robust rules and regulations, are foundational tools. Well-drafted provisions not only help manage behavior but also provide the first line of defense if complaints arise. These documents should:
- Address, restrict, and regulate likely nuisances (e.g., excessive noise, strong odors, obstruction of common areas, pets, etc.),
- Define permissible and impermissible activities and clearly set expectations for tenant/occupant behavior, and
- Provide remedies for breaches.
3. Communication and Education. Effective communication is key. Property owners should:
- Notify offending tenants/occupants of complaints and encourage swift corrective action,
- Use signage (even temporary signage) to promote courteous behavior (e.g., reminders about noise levels, smoking restrictions near entrances, picking up after pets, etc.), and
- Send reminder notices via letter, email, and/or text message to give advance notice of service or construction work and to reinforce expectations and encourage compliance.
4. Physical Mitigation Measures. Where communication efforts are insufficient, physical improvements may be necessary. These can include:
- Soundproofing walls and ceilings,
- Enhancing ventilation systems,
- Installing sound barriers or buffers.
Investing in such measures can significantly reduce conflicts over time, but should ultimately be the responsibility of the party creating the issue following the long-standing principle that the polluter pays.
5. Relocation or Operational Restrictions. If a nuisance persists, relocating the offending party (where feasible) may be the most practical solution. Alternatively, operational restrictions—such as limiting hours of operation, capping occupancy, or restricting certain activities—can help minimize disruption and the adverse effects of the nuisance.
As mixed-use developments become the norm, nuisance complaints are likely to become more common. By proactively planning, setting clear expectations, maintaining open communication, and being prepared to implement physical or operational changes, property owners and landlords can effectively manage the situations that would lead to these issues. A thoughtful, multi-pronged approach not only minimizes the risk of disputes but also helps create vibrant, successful communities where diverse uses can coexist peacefully.