Most declarations have provisions that prohibit nuisances. In theory, a violation of a nuisance provision could be treated like any other type of covenant violation. But can it really? What is a nuisance? What type of behavior rises to the level of a nuisance? The answers to these questions are not necessarily easy.
Nuisance Claims
There are several ways to pursue a nuisance:
1) As a violation of a city or county ordinance;
2) As a violation of a nuisance provision in the declaration; and
3) As a common law claim of nuisance.
Each of these methods has pros and cons and may require a different level of proof by the association. If there is a city or county ordinance prohibiting the nuisance then it might be easiest to contact the applicable law enforcement department and file a complaint. These ordinances vary greatly by city or county. Click here http://www.ortenhindman.com/PDF%20Files/nuisance%20chart-ordinances.pdf for a list of links to city and county nuisance ordinances.
If there is no city or county ordinance or the police/sheriff is not willing to address the situation, then an evaluation of the provisions in the governing document is necessary. First, you should consider whether the behavior or activity is a violation of a more specific covenant or rule. For example, a complaint of continuous loud parties at a unit would be more appropriately dealt with as a violation of a noise level rule, if one existed, than as a violation of a nuisance covenant.
Nuisance as a covenant violation
Nuisance covenants typically read like this:
1. No nuisance shall be permitted within the Community, nor any use, activity or practice which is the source of unreasonable annoyance or embarrassment to, or which unreasonably offends or disturbs, any Owner or which may unreasonably interfere with the peaceful enjoyment or possession or the proper use of a Lot, or any portion of the Community by Owners.
or
2. No loud, noxious, destructive or offensive activity shall be carried on upon any property nor shall anything be done or placed on any property which is or may become a nuisance or cause any significant embarrassment, disturbance or annoyance to others.
So what is a nuisance? Black’s Law Dictionary defines nuisance as an invasion of another’s use and enjoyment of his or her land. While this dictionary definition provides some guidance it is not that helpful. Instead, the board of directors may wish to clarify what types of activities are considered a nuisance through a board resolution. This clarification must be reasonable. Case law throughout the country has offered some suggestions as to the factors that might be considered in determining whether a given activity is a nuisance:
a) type of neighborhood;
b) nature of thing or wrong complained of;
c) proximity of those alleging injury;
d) frequency/duration;
e) continuity;
f) damage or degree of injury; and
h) number of complaining parties.
It will be the association’s burden to prove that the covenant prohibiting nuisance is being violated. Therefore the board should take steps to establish a thorough record of the complaints, including dates, times, complaining parties, witnesses, duration, etc. Depending on the activity it might also be appropriate to take photographs, videos or make audio tapes of the activity. It is generally suggested that the board require residents to put their complaints in writing. This documentation will help support any legal action taken by the association and can also help if an association chooses not to pursue an alleged violation and is then sued by the complaining party.
The most common circumstance that gives rise to nuisance complaints is noise. For example, loud noise, such as televisions or stereos cranked too high, can often irritate and anger neighbors, especially in condominium or townhome communities where neighbors share walls. In such cases, an association could consider implementing quiet hours during which noise is to be kept to a minimum. A possible noise meter could be utilized to limit the level of noise so it can not be heard from adjoining units. Limiting the hours of use of swimming pools, basketball courts and other recreational facilities can also lower noise complaints from owners. In addition, there may be noise complaints caused by installation of hardwood or tile floors in upper units. This kind of situation can be remedied by requiring soundproofing be installed whenever any floor covering other than carpet is to be used.
Noise issues also arise when an upstairs owner installs tile or hardwood floors without soundproofing, resulting in the downstairs neighbor hearing every step. This kind of situation can be remedied by requiring soundproofing be installed whenever any floor covering other than carpet is to be used.
Regardless of the type of nuisance, an association might consider rewriting the rules to provide a specific rule to deal with the problem and provide procedures for notice, hearing, and fines if such procedures are not already in place.
Nuisance as an independent cause of action
Stopping a nuisance can also be achieved through a cause of action for a private nuisance. This is distinct from a covenant enforcement cause of action because the court (or jury) applies a different standard. This cause of action does not require any provision in the Declaration; instead it is based on statute, ordinance, or common law. Colorado courts have held:
[a] claim for [private] nuisance must be based on a substantial invasion of a plaintiff's interest in use and enjoyment of his property when such invasion is: (1) intentional and unreasonable; (2) unintentional and otherwise actionable under rules for negligent or reckless conduct; or (3) so abnormal or out of place in its surroundings as to fall within principle of strict liability.
To maintain a successful nuisance claim, there must be an unreasonable interference with the use and enjoyment of the property of another. Generally, to be unreasonable an interference with the land of the plaintiff who alleges nuisance must be significant enough that a normal person in the community would find it offensive, annoying, or inconvenient.
Conclusion
Nuisance claims are difficult to prove and require significantly more work and preparation than normal covenant violations. Therefore, consider the following checklist before proceeding with any type of nuisance claim.
1. Does the declaration prohibit nuisances?
2. Do the rules and regulations prohibit nuisances?
3. Is nuisance defined specifically in the Declaration or by board resolution?
4. How many owners have complained?
5. Is there a log of dates and times of the alleged nuisance?
6. Is the conduction being complained of repetitive?
7. Has the conduct continued for a significant amount of time?