Understanding and Dealing with Nuisances in Common Interest Developments

All property owners that are members of a homeowners association which manages a common interest development are responsible for complying with state and local laws and the provisions contained in the association’s governing documents. The applicable laws and an association’s governing documents will contain important provisions that prohibit owners from engaging in activities that are, or could become, an unreasonable annoyance (nuisance) to others. This article is intended to educate owners of condominiums and other properties that are part of a common interest development on the types of activities that may constitute a prohibited nuisance and the mechanics of the process of dealing with a nuisance.

Common Activities That Create a Nuisance

In general terms, activities that have been found to create a nuisance typically involve:

• An unreasonable interference with one or more other person’s use or quiet enjoyment of their separate interest or exclusive use common area.
• An activity that creates conditions which are hazardous or offensive to others.
• An activity that causes the cancellation or non-renewal of an insurance policy maintained by the association or another owner.
• An activity that constitutes a violation of any applicable local, state or federal law.

Common Activities That Result in Nuisance Claims

Everyday activities that are commonly the subject of nuisance claims and disputes in homeowners’ associations include Odors, Noise, Hoarding, Pets, Clutter, Fire, Home Offices, and Construction Activities.  The nuisances that could result from each of these everyday activities are detailed below:

Odors

Activities that create odors such as cigarette, cigar and marijuana smoke, food, pet waste, garbage and other items within a unit/lot or exclusive use common area  can not only be unpleasant to neighboring residents, but can attract pests and rodents, which pose a health and safety issue. Such activities are often found to be offensive or hazardous, and thus constitute a nuisance.

Noise

Frequent nuisance issues in common interest developments involve noise that is related to conduct in both common areas such as a pool area or clubhouse, and individual residences. Noise nuisance complaints result from many different types of activities including, but not limited to such things as loud conversations, yelling, screaming, sex noise, running, bells, whistles, horns, musical instruments, TVs, stereos, video games, sports activities, televisions, and hard surface flooring.

Hoarding

Hoarding is a pattern of behavior that is characterized by the excessive acquisition and inability or unwillingness to discard large quantities of objects that would seemingly qualify as useless or without value.  Hoarding can pose a danger to the hoarding owner and his/her neighbors of risk of fire, pests and vermin, mold growth and other health concerns.

Pets

Aggressive behavior, loud and/or continuous barking, soiling in the common area, damage to common area property and unleashed/uncontrolled animal access in the common area are examples of pet violations that are frequently the basis for nuisance claims.

Clutter

Clutter on balconies, patios, parking spaces, carports and yards may constitute a visual nuisance that affects the aesthetics of the common interest development.

Fire

Fires, fumes, smoke, cinders and ash that stem from outdoor fires (fireplaces, fire pits) on balconies, decks, and in yards can annoy the occupants of neighboring residences and constitute a nuisance as well as a health and safety issue.

Home Offices

Activities associated with home businesses, such as manufacturing, storing, and selling materials or products from or in a unit or lot, as well as excessive access to and from a separate interest by clients, customers, messengers, delivery personnel or other individuals who regularly visit the owner’s business could create a nuisance.

Construction Activities

Construction activities that are conducted in violation of an association’s governing documents and/or local laws and improvements that do not comply with plans and specifications that have been approved by the association can result in a nuisance.

Enforcement Issues

Neighbor-to-Neighbor Disputes

Homeowners’ associations are frequently requested to get involved in neighbor-to-neighbor disputes over nuisances that do not necessarily involve the community interest.  Even if a board determines that the association does not have a duty to resolve a nuisance issue between owners, it is a good idea to engage in efforts to facilitate a resolution of the matter between the neighbors as in many instances the association will be dragged into a lawsuit involving the unresolved matter. If internal dispute resolution mechanisms do not resolve the issues, an association’s board should consider participating in a mediation with the owners to try and help resolve the issue and avoid becoming embroiled in costly protracted litigation.

Fair Housing Laws

When addressing issues about alleged nuisances, association boards must remember that various state and federal fair housing laws require that an association make reasonable accommodations to residents with physical or psychiatric disabilities. These reasonable accommodations may require the association to permit activities and uses that might otherwise constitute a nuisance under the association’s governing documents. Accommodation issues frequently involve such things as the breed and size of permissible pets, the number of permissible pets, taking pets in restricted areas, architectural modifications, and parking limitations. When addressing reasonable accommodation requests, an association’s board of directors should confer with legal counsel to ensure that the association is responding appropriately to such requests.

Summary

Homeowners’ association boards are frequently requested to get involved in disputes over alleged nuisances. Associations should have policies for addressing alleged violations through internal or alternative dispute resolution procedures, and when necessary, file legal actions seeking appropriate injunctive relief.   The determination of whether an alleged violation rises to the level of a prohibited nuisance can be very difficult and nuisance issues should to be addressed with deference to the sensibilities of an average person, not a hypersensitive person.   Association boards that are confronted with a possible nuisance violation should investigate and try to make an independent assessment of the degree of harm posed by the behavior in question. Ultimately, the board must make a business judgment as to whether, and to what degree, enforcement of the governing documents against the alleged perpetrator of the nuisance is appropriate, keeping in mind that enforcement action should not be selective, vague, arbitrary or unreasonable.  When dealing with nuisance issues that may involve possible legal action against an owner, resident or the association, statutory protections, complicated facts, and fair housing laws, an association should consult with experienced legal counsel in their jurisdiction to ensure that the board is properly addressing the situation.  If an association does not act timely and decisively in enforcing nuisance covenants, then the association may be unable to enforce those nuisance covenants and/or the association may be exposed to liability for not taking appropriate action.