Sunday, December 28, 2014

Defining a Nuisance in your Community


If you live in a shared ownership community, you have likely heard the term "nuisance" bandied about now and then. It is an unfortunate byproduct of living in close quarters with others that at some point, another person's conduct may impact your enjoyment of your home.


A nuisance can be summed up as a condition, activity or situation (such as loud noises or foul odors) which interfere with another person's use or enjoyment of property. Every set of association documents I have reviewed over the last two decades contains at least a bare bones nuisance provision.

Legally speaking there are many different types of nuisances which include:

1.      Abatable nuisance-easily removable by reasonable means.
2.      Nuisance per se (aka absolute nuisance)-an interference so severe that it would                    create a nuisance under any circumstances.
3.      Anticipatory nuisance-a condition which has not yet risen to the level of a nuisance but           is very likely to become one.
4.      Attractive nuisance-a dangerous condition that could attract children-a typical example           is an unsafe lake or other body of water.
5.      Permanent nuisance-cannot be readily abated at reasonable expense.
6.      Private nuisance-this one is the most applicable in the community association setting            as it impacts a person's enjoyment of his or her property.
7.      Public nuisance (aka common nuisance)-is an unreasonable interference with a right            common to the general public.

Practically speaking, the following conditions can be considered nuisances depending on how often they occur and the level to which they rise:

-Loud noises-radio, pets barking, screaming, etc.
-Odors
-Parking-blocking in neighbors' cars, parking on others' property, etc.
-Failing to clean up after dogs and/or allowing dogs to run around off leash
-Domestic violence
-Smoking
-Overflowing waste receptacles used by owners undertaking home renovation projects
-Leaving holiday decorations up year-round

The foregoing list is certainly not all-inclusive. Nuisances in communities often result in long-ranging consequences which can include board members being recalled for failing to act, people moving out of the community and, in the most dire circumstances, violence erupting between neighbors.

Which activities have you seen in your community or a neighboring community which could constitute a nuisance? What has your board done to correct the problem?

If you have not looked at, let alone amended, the nuisance provision found in your original developer-written documents, it is time to do so. Why leave it up to a trier of fact to determine what is considered a nuisance in your community? Spell it out for swifter and easier enforcement.


Sunday, December 14, 2014

Filling out lender and title agency questionnaires-should your community association take the extra step?

With growing frequency, volunteer community association board members and association managers are being asked to fill out lengthy and often complicated paperwork on behalf of business entities who are looking to evaluate the value of a particular community.

Your board may receive a request from a lender or title agency (or the attorney for either of the foregoing or for the owner looking to sell or finance his or her home) asking you to fill out a questionnaire which assesses the community's overall condition including disclosing the number of delinquencies, violations, and leased properties among other items. The more brazen of these requests may include language which states that you are providing this information "under penalty of perjury" and that your statements are being relied upon by the company requesting same in order to make that loan or write that insurance policy.

Just last week, I received a request from an insurance company asking one of my clients to guarantee that a policyholder's home was protected 24/7 by armed guards.

Some boards and managers are rightfully reluctant to serve the role of quasi-risk assessment officer for a business entity. However, when an association balks at filling out this paperwork, the typical reaction from the entity requesting same (or from the owner) is that the association is tortiously interfering with the contemplated transaction. Of course, the next sentence usually contains some threat of legal action.

How should your board react to these kinds of requests?

In fact, the Florida shared ownership statutes do not require boards to fill out these questionnaires. The Condominium Act, for example, provides in Section 718.111(12)(e), that an association or its authorized agent is not required to provide a prospective purchaser or lienholder with information about the condominium or the association other than information or documents required by the Act to be made available or disclosed. The Condominium Act further allows the association to charge a fee up to $150 plus the reasonable cost of photocopying and any attorney's fees incurred by the association in connection with preparing a response. Lastly, the statute specifically states that neither the association nor its agent are liable for providing such information in good faith if the response includes the following statement:

"The responses herein are made in good faith and to the best of my ability as to their accuracy."

Even with the ability to charge for the preparation of a response and the statutory protection from liability, some association boards and managers may feel that providing such information could fall under the category of "no good deed going unpunished" should the entity later attempt to recoup losses against the association for the representations it made.

Every one of these questionnaires is slightly different so do speak with your association attorney prior to attempting to fill one out. Your board may also wish to create a policy on which requests will receive responses, which it deems unduly burdensome or risky and the fees it will charge.