What’s that smell? What’s that sound? What am I looking at? Whatever it is offends me. Could it be a nuisance? Condominium associations in Florida deal with nuisances on a regular basis, from sight, smell and sounds. The biggest problem in addressing nuisance issues is defining exactly what constitutes a nuisance. Generally, nuisance is defined in Black’s Law Dictionary as “a condition or situation that interferes with the use or enjoyment of property.” This definition is vague and leaves room for interpretation.
Almost all Florida condominium associations have documents that prohibit nuisances but provide no express definition of nuisance. Very generally, some governing documents will include language to prohibit conduct that would endanger the health, annoy or disturb or cause embarrassment, or discomfort occupants. Conduct that could rise to a nuisance, as categorized by type, may include the following:
- Smoking on the lanai or in the hallways
- Not cleaning up pet-waste
- Not attending to the trash in the unit
- Stacking trash outside the unit
- Playing music at an unreasonable decibel at 2:00 AM
- Dogs constantly barking at all hours of the day and night
- Excessively revving the engine of a vehicle
- Dropping dumbbells on the second floor at 2:00 A.M.
- Parking a vehicle incorrectly and preventing others from parking and/or leaving the premises
- Domestic violence incidents
- Trash piled up on the balcony or front door
- Excessive signage or obscene signage
This conduct may seem like a no-brainer because it clearly sounds like it falls under the classification of a nuisance. Unfortunately, most questions of what constitutes a nuisance are not answered so easily – the “gray area.” In an attempt to avoid this so-called gray area, associations should review their documents and determine how they can provide a more readily understandable definition of a nuisance. For some communities, this may include one of the following limitations: limiting noise from midnight until 6:00 AM; setting specific decibel ranges at which sounds are appropriate; restrictions on the length of time a sign can be on the resident’s property; length of time that objects can remain on the limited common elements; prohibiting smoking in the hallways; requiring pet waste clean-up; etc.
Another pointer for associations is to require a complaining resident to keep a log of the conduct that the resident believes to be a nuisance. Requiring a “nuisance log,” if you will, not only provides a clear timeline and details of the issues, but it could be convenient if litigation were to ensue. This would not apply if the association or its agents were the party reporting the nuisance, but the same standards would apply. Associations must keep detailed records of any issues in the community.
A nuisance does not include conduct of every day activity such as walking around a unit, talking on the phone during reasonable business hours, or the occasional baby or child crying. There are times where residents of associations must be reminded that because they share walls, there is no guarantee for complete silence all of the time. To show a nuisance, an owner must showing ongoing conduct that substantially and unreasonably disturbs their use of their unit. “Whether the activities constitute a private nuisance is a question to be decided based on the facts presented, and a court looks to whether there is an appreciable, substantial, tangible injury to the property rights of others, and not merely a trifling annoyance, inconvenience, or discomfort.” Admiral’s Port Condominium Association, Inc. v. Roberto Barani, 2014 WL 1513532, at *3 (Fla. DBPR Arb. March 5, 2014) (citing Bechman v. Marshall, 85 So. 2d 552 (Fla. 1956); Baum v. Coronado Condominium Association, Inc., 376 So. 2d 914 (Fla. 3d DCA 1979)). Going back to the idea of keeping a log, if conduct only occurs once every two weeks, it may not rise to the level of a nuisance- a log may be useful to differentiate a fussy resident from a legitimate claim.
Aside from amending the documents for more clarity in these situations, there are other options that are available. One suggestion is simple communication. There are times that a resident is unaware that their conduct is disrupting others. Maybe they have never lived in units that adjoin other residents or they are unfamiliar with the sound barriers. By having the affected neighbors communicate directly with the resident causing the issues, there could be an immediate resolution. While this will not always work, you would be surprised at how many times it prevents the association from getting involved. If the association must get involved, and if the governing documents permit, the association can send a violation letter to the resident creating the issues.
While there are no limitations per se on when associations can send a violation letter for a nuisances, associations should be mindful and cautious of calling actions a “nuisance” that do not rise to such a level. Associations do not want to be at the risk of homeowners pursuing legal actions for discrimination, defamation, or some other cause of action that may stem from untrue allegations. This is not to say that associations can never label actions as a nuisance, because there are certainly instances where particular actions are clearly a nuisance. Rather, associations should be heedful of actions that do not clearly endanger the health, annoy or disturb or cause embarrassment, or discomfort occupants.
If there recurring questions about what constitutes a nuisance in your community or what you can do about the possible nuisance, it may be time to re-visit the governing documents and set some parameters around the offensive conduct.