Monday, September 21, 2015

Clearly defining nuisance activity in your governing documents can help association boards avoid future headaches

A nuisance is generally defined as a person, thing or circumstance which causes inconvenience or annoyance. For some people living in shared ownership communities, there is no escaping a nuisance situation that has risen to a level which impacts the enjoyment of their homes and their community.

If you have ever suffered through a nuisance scenario, you may understand how hard it can be at times to achieve consensus on whether or not the activity in question is an actionable nuisance. Is that television really being played at a blaring decibel level or is the neighbor just particularly sensitive or, worse, looking for a new angle in a personal fight?

In a community association setting, nuisances can come in many forms.

  • Loud, consistent noise either in the form of music, yelling, use of electronic devices or failure to properly soundproof flooring in a multifamily building
  • Pets-barking, defecating, biting, and running around off-leash
  • Secondhand smoke-spilling into neighboring units, balconies and common areas
  • Odors from cooking, chemicals and other sources
  • Hoarding-creating conditions for insect and rodent infestation into neighboring units and common areas
  • Domestic violence-frequent arrival of emergency services and police at all hours
  • Visually unappealing property condition-one example would be an overflowing dumpster sitting in front of a house undergoing renovations for months
  • Short-term rentals
A general nuisance provision is standard in most developer-drafted documents. However, it is rare to find a nuisance restriction that is fully fleshed-out; one which clearly defines the various conditions or behaviors which constitute a nuisance in that particular communities and which can therefore be more readily abated by enforcement efforts. When confronted with a nuisance, the starting point is to find out what is driving the behavior or condition and identify the quickest way to resolve the problem. Sometimes the behavior is driven by a mental illness and other times it is a deliberate attempt to annoy.
If an owner is unwilling to cure the nuisance activity, the association's options may include fining, suspension of common area use rights and pursuing a Court Order to force the behavior or activity to stop.  All enforcement will be easier if the activity or behavior is clearly identified in your governing documents as being a nuisance rather than having to debate the issue.

Next time you decide to update your governing documents, please discuss what changes should be made to your nuisance restriction with your association attorney.

Not planning to update those antiquated documents any time soon? Stay tuned for a future blog post on why allowing your documents to remain stagnant is a big mistake!