21 Sep 2021

Of all the violations a community association must deal with, nuisances are perhaps the most troublesome because of their inherent uncertainty.  Unfortunately, determining what constitutes a nuisance and determining when to take action with respect to a nuisance is somewhat troublesome.  While it is not difficult to provide community association managers, associations, boards and developers with multiple definitions of the word “nuisance”, listing all the activities which constitute a nuisance or affording a black and white guideline for determining when a particular condition rises to the level of a nuisance is far more difficult, if not impossible.  Nevertheless, the following definitions may be of some help, especially when combined with the discussion which follows:

NUISANCE. (1) Anything that works hurt, inconvenience or damage, also called “nocumetum” or “annoyance”.  Prior v. White, 132 Fla. 1, 180 So. 347 (1938).

(2) Anything that annoys or disturbs one in the free use, possession or enjoyment of property or renders its ordinary use or occupation physically uncomfortable.  Mayflower Holding Co. v. Warrick, 143 Fla. 125, 196 So. 428 (1940).

While the above definitions of “nuisance” may be helpful, they really do not provide managers, associations, boards or developers with clear guidelines for determining whether a nuisance exists (e.g., when a condition has deteriorated to such an extent that a nuisance exists).  Ultimately, determining when a nuisance exists is up to the person who is evaluating the condition, which means such determination is impacted by that person’s prejudices, sensitivities, life experiences, customs, etc.  Therefore, no empirical or black and white standard exists by which associations, managers, board of directors, etc. can be assured that its determination that a nuisance exists will be upheld by a particular judge or jury.

Some individuals may believe a nuisance exists by virtue of a radio being played loudly.  However, the real question is how loud must it be played before it really becomes a nuisance?  Some people believe only earth-shaking music would be a nuisance (hence the term “boom boxes”).  Others find any relatively loud sound offensive.  Individuals with hearing disorders (e.g., individuals who are hard of hearing) may be unable to even hear such music even when it is played loudly.  Therefore, the determination of whether a nuisance exists is, to a degree, subjective and the standard by which it is evaluated is somewhat amorphous.[1]

Given the above, the Board may want to consult with its attorney regarding whether a particular condition merits a finding that a nuisance exists.  As part of evaluating whether a nuisance exists, we advise our association and developer clients that they may not want to simply use a reasonable person’s standard. Instead, they may want to employ a clearly unreasonable person’s standard.  Stated differently, before proceeding on a nuisance issue, an association and/or a developer may want to determine or ensure that the problem condition is, at least, somewhat egregious, clearly unreasonable and/or offensive.

Another problem with nuisances is that they may only exist for a relatively brief period of time but reoccur.  As such, once the problem condition is abated, the violator can claim that the association’s or the developer’s claim that a nuisance exists is moot.  Stated differently, once a violation is remedied, even temporarily, the violator can claim the association or developer no longer has a basis upon which to proceed.  As such, nuisance violations can be very frustrating.  To compound the problem, boards, managers, associations, and developers must reconcile their attempt to preserve the appearance of their community and the enforceability of their governing documents, with the need to control legal expenses.  As such, a question arises whether an association and/or its counsel should stop proceeding if the matter has been corrected. However, what if the violation reoccurs? What if litigation has already commenced?

The answers to the above questions depend on all the facts and circumstances, including, but not limited to:

  1. How many repeat violations have been committed?
  2. What action did the association represent it would take?
  3. Will the violator agree in writing that the violation existed and that the association will be entitled to a judgment upon any future violation as determined by the board of directors in its sole unfettered discretion and/or upon the occurrence of a specified event?
  4. Will the violator agree to a default judgment in the lawsuit if the association does not seek to recover its attorney fees?
  5. Will the violator pay the attorney fees and costs incurred by the association?
  6. What is the effect on the community and its future enforcement if the association forgoes proceeding?
  7. Will the association lose credibility with its other members if it fails to proceed?
  8. What if any damage has been caused by the nuisance?

As our clients know, we preach the importance of building and preserving credibility.  As such, at times associations and developers may need, want or feel compelled to pursue violators including those who temporarily cure violations.  If you encounter repeat violations, consider speaking with your counsel about attempting to classify the violation as a continuing and/or repeat violation meriting escalation thereof.

Ultimately, nuisance violations are problematic. Moreover, they subject associations, boards, managers and developers to criticism for proceeding, as well as for failing to proceed.  Nevertheless, nuisances are some of the most common violations and need to be addressed, as they can have an adverse impact on:

  1. your community;
  2. property values;
  3. the credibility of management;
  4. the credibility of the board of directors;
  5. the credibility of its officers, and
  6. the credibility of the developer.

Additionally, failure to address nuisances can impair the association’s rights to prohibit future nuisances, especially of the same type.

[1] Despite the above, certain conditions which pose health risks may more clearly be found to constitute nuisances.