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Enforcing   Enforcing


Enforcing "Nuisance" Provisions

Written By: Richard Thompson
Wednesday, November 18, 2020

"Nuisance" has been defined as "something that causes harm" and "a bit of a bother." Nuisances are a pretty common occurrence in homeowner associations since living in close proximity is bound to create friction from time to time. Most HOA governing documents include language like: "No resident shall engage in offensive activities which are a nuisance, or interfere with the quiet enjoyment of other residents."

These "nuisance" provisions trigger the need for the HOA to control certain resident behavior. The problem is there is a growing belief in the legal community that these provisions themselves may be a nuisance for the boards responsible for enforcing them.

One problem is simply defining the term "nuisance." The obvious goal of nuisance provisions is to prevent residents from making other residents miserable. But the broad wording of typical nuisance provisions leads to arguments of whether such provisions apply to almost any activity, or none of them. This ambiguity causes board members charged with enforcing them to echo former Supreme Court Justice Stewarts statement about the difficulty of defining obscenity: "[I cant define it], but I know it when I see it."

In the same vein, many HOA boards would agree that they recognize a nuisance when they see it. However, this approach has mixed results. Behavior that infuriates one person might go unnoticed or overlooked by another. Hyper-sensitive residents may deem all sounds as offensive, while others may refuse to recognize how their neighbors could find the most offensive behavior unacceptable.

The typical nuisance language in HOA documents doesnt offer much guidance to the boards who must mediate these disputes. One option is to list the activities or behaviors that will constitute a nuisance. Generally, the board has the authority to adopt resolutions "to clarify" the governing documents. A nuisance resolution could include:

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Barking dogs at any time
Unsupervised pets in the common areas
Loud music, TV, singing. etc. between 10 p.m. and 8 a.m.
Obnoxious odors
Use of chemicals or equipment that cause life or fire safety concerns
Tobacco or barbecue smoke that migrates between units
Housekeeping that causes fire safety or health conditions overly cluttered, attracts vermin, mold, etc.
Other activities that the Board deems to be a nuisance catch all provision

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Is a nuisance a bit of a bother or something that causes harm? Good question. But this is an area in which the board needs to establish a policy that works most of the time and then focus on those special cases that require more thought or mediation.

Excerpts used with permission from an article from HindmanSanchez.com





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