However, while an association is advised to adopt specific nuisance provisions, associations should not attempt to make such provisions all-encompassing.  An association does not want to define every conceivable irritation as a nuisance that boards, in fulfilling their fiduciary duty as board members, must address.  But adding some reasonable level of detail will give boards an objective standard on which to base their enforcement decisions.  A more detailed and aptly worded nuisance provision will 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 if the activities have a negative affect outside of the individual residence.
 
Reaching Into Owners’ Homes: Smoking Bans
The law on how far boards may intrude into individual residences is an interesting and still evolving area.  For example, anti-smoking activists argue that boards should be able to use a broadly-worded nuisance provision to prohibit residents from smoking, not just in common areas, but inside their residences as well.  They argue that the second-hand smoke produced by smoking is “noxious” by definition to non-smokers and so qualifies as a nuisance boards can prohibit.  This argument, however, has not yet been tested in the Colorado courts. How a court would respond to a request to prohibit an individual from engaging in a legal activity within his or her home is not clear.  (Click here for an earlier Community E-ssentials article addressing this issue.)
 
Another – less controversial – approach boards can take is to 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.   
 
Board Decisions to Intervene
The smoking issue aside, although more detailed nuisance language will provide helpful enforcement guidance to boards, such guidance will be incomplete at best.  Boards cannot possibly anticipate and identify specifically every possible “nuisance” that may arise in an owner complaint, nor should they attempt to do this.  Behaviors that annoy or offend some residents do not necessarily translate into nuisances meriting a response from the board.
 
Sometimes, however, a board must intervene.  For example, board intervention was necessary 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.
 
Just like life generally, life in common interest ownership communities will have its share of annoyances at some point.  Unfortunately, annoyed owners often file nuisance complaints because they dislike their neighbors and find everything they do, including breathing and taking up space, a nuisance.  Owners should attempt to resolve these types of problems between themselves.  Unfortunately, owners often choose not to communicate with each other, preferring the seemingly easier route of having the board handle it for them. Then, the board is required to enforce the association’s nuisance provision, if it has one.  This obligation to enforce nuisance provisions has caused many community association attorneys to believe that associations should eliminate such provisions, and, in the process, eliminate the assumption that the board is responsible for resolving nuisance complaints.
 
A Middle Ground
As a practical matter, most communities would be reluctant to cede the board’s enforcement authority in this area entirely.  However, without ceding all enforcement authority, a similar result could be achieved by modifying the language of nuisance provisions 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 (and encouraging alternative dispute resolution methods such as mediation or arbitration instead of litigation).

• 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.
• If the board is to enforce a nuisance provision, the board 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, it 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 define 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.