Another neighborly dispute. A neighbor sues her neighbors for making too much noise. She cites the CC&Rs and requests fees but then loses at a bench trial. The neighbors then demand their fees. Although there is a clause in the CC&Rs prohibiting noise and a separate clause allowing for attorney’s fees, the essence of the claim is a nuisance tort. No one receives fees in tort actions, and one cannot contract around common law. The court provides a good review of Barmat and prior cases under § 12-341.01 to emphasize that fees are authorized only when the tort could not exist but for the breach of contract.

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