Published on: December 22, 2005
Although the governing documents of most community associations include nuisance provisions, an increasing number of attorneys are concluding that these provisions themselves may represent a nuisance for the boards responsible for enforcing them. One problem, although not the only one, is simply defining the term. Most documents use language similar to this: “No owners shall engage in noxious or offensive activities, or do anything which may become an annoyance or a nuisance, or in any way interfere with the quiet enjoyment of other owners.”
The obvious goal is to prevent owners from making other owners miserable. But the typical nuisance wording is broad enough to encompass almost any activities, or none of them. This ambiguity requires the trustees charged with enforcing association covenants to say of nuisances what Supreme Court Justice Potter Stewart said famously of pornography: “[I can’t define it], but I know it when I see it.” That approach didn’t work particularly well with pornography, and it is even less effective with nuisances, which, like pornography, tend to be in the eyes of the beholders. Behavior that infuriates one person might go unnoticed, or at least unremarked, by another. Hyper-sensitive residents may deem all sounds, real or imagined, as offensive, while insensitive residents may fail to see, or refuse to recognize how their neighbors could find the most offensive behavior unacceptable.
A Possible Fix
The typically open-ended nuisance language in condominium documents doesn’t offer much help to the boards called upon to mediate these disputes. One possible fix is to make nuisance provisions more specific, by listing the activities or behaviors that will be deemed to constitute a nuisance. If the original documents don’t include this level of detail (which most do not), the owners can vote to amend the language. A revised provision might identify as nuisances the most common complaints, for example:
- Dogs barking after or before specified times, or roaming the common areas unattended or off-leash.
- Playing musical instruments, phonographs, radios, television, or loud music at a volume that disturbs the quiet enjoyment of the owners or occupants.
- Using chemicals or equipment or engaging in activities that threaten the health or safety of residents or pose a threat to owners’ property or to the community as a whole.
Making nuisance provisions more specific does not necessarily mean making them all-encompassing, however. You don’t want to define every conceivable irritation as a nuisance that boards must address. But adding some reasonable level of detail can give boards an objective standard on which to base their enforcement decisions. A more detailed and aptly worded nuisance provision can also clarify that the board’s rulemaking authority, which is generally limited to activities affecting the common areas, may cover some activities within individual residences as well.
How far into individual residences the boards can intrude is an interesting and still evolving area of the law. For example, anti-smoking activists argue that boards should be able to use a broadly-worded nuisance provisions to prohibit residents from smoking, not just in common areas, but inside their residences as well. Their argument is that smoking is “noxious” by definition to non-smokers and so qualifies as a nuisance boards can prohibit. But this represents an as yet untested legal theory; it is not at all clear how the courts will respond if asked to prohibit a legal activity conducted within the confines of an owner’s property.
Boards could use broad nuisance language to require smokers to mitigate the seepage of smoke into other units or common areas. However, barring definitive action by the courts, communities that want to prohibit smoking entirely should amend their covenants accordingly – a step that usually requires unanimous approval of the owners.
The smoking issue aside, more detailed nuisance language will provide helpful enforcement guidance to boards, but that guidance will be incomplete at best. Boards cannot possibly anticipate and specify every nuisance about which owners might complain, nor should they try. Every behavior that annoys or offends some residents is not necessarily a nuisance to which the board should respond.
When to Intervene
Sometimes, the need for board intervention is clear. That was certainly the case in an association where neighbors complained about the stench coming from a unit whose owner had 20 cats and two litter boxes – a “noxious” condition, and a potential health hazard by anyone’s definition of those terms.
But what about the owner infuriated by the footsteps sounding above her when her neighbor returned late at night? Or the nurse working an early morning shift driven nuts by a nocturnal neighbor who played head-banging music at all hours, through speakers placed against the same wall on which the nurse had placed her bed? The association’s board did intervene on behalf of the nurse in that case, bringing in an expert to measure the decibel level of the music to prove that it did, in fact, represent a “nuisance.” While the board would almost certainly have won the legal battle had there been one (the noisy neighbor moved before the case went to court), the enforcement exercise was time consuming and expensive for the association, as nuisance actions often tend to be.
In life generally and in common interest ownership communities in particular, everyone annoys or is annoyed by someone about something sometime. And more often than not, owners file nuisance complaints simply because they don’t like their neighbors and find everything they do, including breathing and taking up space, annoying. These are problems the owners should resolve themselves. They don’t because it is easier (for the owners) if the trustees handle the problem. And if the association has a nuisance provision, the trustees are required to enforce it. That’s why some attorneys think associations should simply eliminate the provisions, and with them, the assumption that the board is responsible for resolving nuisance complaints.
A Middle Ground
As a practical matter, most communities would probably be reluctant to cede the board’s enforcement authority in this area entirely. But they could achieve a similar result by modifying the language to specify that:
- While the board may enforce nuisance complaints, it is not required to do so; and
- Owners have a responsibility to resolve nuisance complaints on their own.
Nuisance provisions modified in this way should also state specifically that owners have the authority to enforce condominium rules on their own. The authorizing language is important, because governing documents typically give the board the exclusive authority to enforce the association’s covenants and rules. So, for example, if the nuisance provision prohibits disruptive noise, only the board could file suit against a noisy resident. Empowering owners to enforce the rules independently doesn’t eliminate the board’s authority; but it does eliminate the pressure on the board to enforce very nuisance complaint owners file, while giving owners the means of resolving neighbor vs. neighbor disputes the board chooses not to handle.
Some boards might also want to consider drafting their nuisance provisions to track municipal ordinances. While local authorities won’t enforce a community association’s rules, they will respond to complaints about violations of municipal laws or ordinances. This can be particularly helpful to smaller associations with limited resources available to pay the legal costs that internal enforcement actions often entail.
However limited or extensive a role the association decides to play in handling nuisance complaints, it is in the community’s interest to reduce friction between and among owners as much as possible. With that goal in mind:
- Boards should treat all nuisance complaints seriously, and respond to them as quickly as possible, even if the response is that the board is not going to get involved.
- Make sure all owners understand how the association defines nuisances and what steps, if any, the board will take to address violations of the nuisance provision.
- Before intervening in neighbor-to-neighbor disputes, boards should encourage owners to try to resolve the problem on their own.
- If the board is going to become involved in a dispute as a mediator or as an enforcer, the trustees should explain precisely what they are going to do and when, follow through, and keep the parties apprised of their actions.
- If the board is not going to intervene, the trustees should explain why and suggest steps the owners can take the resolve the problem. As one option, the board should recommend mediation and provide information on area mediation services.
Before deciding how or if to amend the association’s nuisance provision, or whether to have that provision at all, owners should carefully the role they want the board to play in resolving nuisance complaints. Given the potential costs to the association, measured in energy, time, and legal fees, a conservative approach to both defining nuisances and enforcing them is often the best policy.