Find It, Fix It, Flip It
July 1, 2022
Jaburg | Wilk Attorneys at Law
If we have to pick one word to describe the difference between living under the laws of our country as opposed to many other countries, that word might be “freedom.” Who at some point in their life hasn’t responded to somebody’s criticism of something that they said by invoking their “freedom of speech?” We are generally “free” to do want we want, wherever, and whenever we want to do it. Lest there be any doubt, our national anthem unequivocally proclaims us to be “the land of the free.” So, what then is the issue that we keep seeing in the news about people not being totally “free” when it comes to playing pickleball?
The simple answer to that not-so-simple question is that along with all of those “freedoms,” also embedded within our legal system is the conflicting right to be “free” from a “nuisance.” A “nuisance” is generally defined as an unreasonable or unlawful use of property that results in a material annoyance, inconvenience, discomfort, or injury to another person or to the public. Such “use” my result from doing something, such as a noisy activity, or by not doing something, such a allowing garbage to accumulate on your property.
The key word in this definition to “unreasonable.” In that what one person thinks is “reasonable” may differ greatly from what another person may think about the same thing, when faced with having to decide an issue based upon a “reasonableness” standard, the courts will attempt to determine what a fictional “reasonable man or woman” would objectively think. When it comes to the noise caused by a friendly game of pickleball, the courts then will consider, among other things, the following:
- It has been reported that the sound of a pickleball paddle hitting the hard plastic ball that is used in the game can be more than 25 decibels louder than a tennis racquet hitting a tennis ball.
- Many municipalities have noise restriction ordinances for residential areas that are exceeded by the noise of a pickleball paddle hitting the ball.
- In addition to the noise created by the hitting of the ball, because a pickleball court is smaller than a tennis court, there are more people playing pickleball than would be playing tennis in the same area, creating even more noise.
Many homeowner’s associations, which have CC&R’s that prohibit excessive noise find themselves at the center of the storm created by pickleball enthusiasts who live in the community on one side, and other homeowners whose residences are in close proximity to the pickleball courts on the other.
Most of the lawsuits filed throughout the country have been settled, usually by the homeowner’s association or the owner of the offending courts agreeing to install acoustic sound barriers and/or limiting the hours of play. There are other workable solutions, including the use of special paddles and balls that are designed to minimize the noise of a ball being hit. Should a case not settle and be litigated through trial, the outcome will depend upon the factual circumstances of that particular case, and the ultimate decision made by a judge or jury as to whether the existence of the pickleball court at issue, and the noise that it creates, is or is not unreasonable and thus a nuisance. If that question is answered in the affirmative, then the game and match at that location will be over.