By: Elina B. Gilbert, Esq.
Many common interest community declarations contain provisions prohibiting “nuisances”, and homeowners and directors alike use these provisions as a “catch-all” category when it comes to annoying people and situations in their communities. But what exactly is a nuisance and how do you know if one exists?
For example, it is not uncommon to receive complaints from owners about offensive cooking odors emanating from their neighbors’ units. Although cooking may not be prohibited in the declaration, the odor deemed offensive by the neighbor is argued (by the offended neighbor) to be a nuisance and therefore a violation of the declaration. But is this truly a nuisance, or is it an overly sensitive neighbor?
The definition of nuisance, according to the Miriam-Webster Dictionary, is: a person, thing, or situation that is annoying, unpleasant, obnoxious, or that causes trouble or problems. Black’s Law Dictionary defines nuisance as an invasion of another’s use and enjoyment of his or her land. By these definitions, almost anyone and anything can be defined as a nuisance if such person or situation annoys another person.
Is this what the governing documents were intended to prevent? Are community declarations truly trying to protect all owners in a community from ever being annoyed or bothered by other individuals or situations while they reside in the community? After all, we all have different sensitivities and different ranges of tolerance, so how can this type of covenant be enforced?
As with any unclear or ambiguous terminology contained in a declaration, the board of directors has authority to clarify and define such terms through adoption of a resolution. Therefore, one option with nuisance provisions is to clarify what types of activities will be considered nuisances through a board resolution. Keep in mind, the resolution must be reasonable and cannot conflict with anything contained in the declaration, bylaws, or articles of incorporation.
Additionally, court cases around the country have provided some guidance in these situations and have identified factors, such as the ones below, to be looked at when determining if nuisances exist:
- type of neighborhood;
- nature of complaint;
- proximity of person alleging nuisance;
- damage or degree of injury; and
- number of complaints and complaining parties.
If the board of directors determines that a nuisance violation exists and enforcement steps must be taken, it is important to understand that it will be the association’s burden to prove existence of the nuisance. Therefore the board should take steps to establish a thorough record of the complaints, including dates, times, complaining parties, witnesses, duration, etc. In certain circumstances it may also be appropriate to take photographs, videos, or make audio tapes of the activity.
Nuisance claims are difficult to prove and require significantly more work and preparation than other covenant violations. The below checklist may be used to help with your analysis as to whether a particular situation is truly a nuisance and a violation of the governing documents:
Does the declaration prohibit nuisances?
Do the rules and regulations prohibit nuisances?
Is “nuisance” defined specifically in the declaration or by board resolution?
How many owners have complained?
Have the complaints been in writing?
Is there a log of dates and times of the alleged nuisance?
Is the alleged nuisance repetitive?
Has the conduct continued for a significant amount of time?
Has the board or manager witnessed any of the alleged nuisances or otherwise independently verified their existence?
Are there any photos, videos, or other evidence of the alleged nuisance?
How are the complaining parties being impaired or injured?
___ Annoyed or disturbed
___ Interference with sleep
___ Interference with peace and quiet
___ Physical impact
If you need assistance in determining whether certain conduct rises to the level of a nuisance, or have questions about nuisance violations, please contact any of our attorneys at 303.991.2010.