When a board member or community manager hears the phrase “nuisance”, many thoughts come to mind regarding what this means, and how it may impact their association, but, more often than not, most do not know what a nuisance really is and what the association may need to do to deal with a nuisance. The purpose of this post is to properly educate community leaders on nuisance principles and to discuss real-word application to community associations.
What is a Nuisance?
nuisance– noun nui·sance \ˈnü-sən(t)s, ˈnyü-\
Merriam-Webster defines a “nuisance” as “a person, thing, or situation that is annoying or that causes trouble or problems.” (http://www.merriamwebster.com/dictionary/nuisance). Utilizing this definition, basically any person, thing or situation seems as if it could qualify as a nuisance. However, the legal standard for determining if a nuisance exists is not subjective in nature, it is objective and is based on a “reasonable” or “normal” person standard. Thus, if a “reasonable” or “normal” person in the same community (area) would view the activity as offensive, then it could be significant enough to be considered a nuisance.
Public vs. Private Nuisance
A nuisance can be a public nuisance or a private nuisance. A public nuisance generally involves a substantial portion of the population and threatens public health safety or welfare (a current example would be the situation of lead in the water in Flint, Michigan). Public nuisances can lead to criminal charges being filed.
In Pennsylvania, and in many other jurisdictions, a private nuisance is defined as a “nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Golen v. The Union Corporation, 718 A.2d 298 (Pa. Super. 1998); citing Restatement (Second) of Torts, § 821D. The invasion must cause significant harm, which is harm of importance involving more than slight inconvenience. Harford Penn‑Cann Service, Inc. v. Zymbolsky, 549 A.2d 208 (Pa. Super. 1988). In other words, to succeed on a claim for a private nuisance, there must be a real and appreciable interference with the Plaintiff’s use or enjoyment of his land. Id.at 209. Thus, a private nuisance involves an appreciable interference with a person’s reasonable use and enjoyment of his (or her) property but does not include an actual, physical trespass.
In an association setting, “neighbor vs. neighbor” disputes frequently involve issues sounding in private nuisance. The resident or owner bringing a private nuisance claim may bring it up with the association and/or may attempt to seek relief from the court.
Frequent examples of private nuisance include noise, odor, light and dust (smoke is a more recent phenomena). It is noted that obstruction of a “view” does generally not give rise to a cognizable claim for nuisance in many jurisdictions. To wit, the Pennsylvania Supreme Court has held that a property owner cannot assert an actionable tort claim to preserve a view from his property. Cohen v. Perrino, 355 Pa. 455, 457, 50 A.2d 348, 349 (1947). In Cohen, one neighbor erected a brick wall entirely on his land some one and half inches from the other neighbor’s house, which fully obstructed that neighbor’s view from the first floor of his property. The plaintiff in the action contended that the structure was a nuisance that blocked his view and diminished the value of his property. The plaintiff sought removal of the structure. The court held that a property owner is entitled to build a wall entirely upon his own ground, or to build a party wall, that obstructs and closes the windows of an adjoining property owner. Cohenat 457, 349. A property owner enjoys the privilege of building, upon his own land, a structure which obstructs the light, air and view of an adjoining landowner. Maioriello v. Arlotta, 73 A.2d 374, 375 (Pa. 1950) and absent the grant of an express easement, adjoining landowners can erect structures that interfere with the other’s view and no cause of action can arise. Larsen v. Zoning Bd. of Adjustment, 543 Pa 415, 429, 672 A.2d 286, 293 (1996).
Nuisance in Governing Documents
Association governing documents typically contain some language in the restrictive covenants (Declaration) as it relates to nuisance, although it is generally not very specific. An example would be “[n]o noxious or offensive activities or noise shall be carried or allowed, in or upon the Common Elements or in any Unit nor shall anything be done therein either willfully or negligently which may be or become an annoyance or nuisance to the other residents in the community.” While provisions like this are vague, and are still subject to the legal standard(s) required to establish a nuisance, these provisions do provide the association with some guidance as it relates to the association’s responsibilities and requirements as it relates to a proposed nuisance in the community.
Enforcement of Nuisance Issues in Associations
Obviously, if a nuisance involves the Common Elements, an association has the authority to, and should, act to abate the nuisance. In doing so, the association should first look to its covenants in order to abate the nuisance. The association should follow the procedures set forth for enforcement as provided in the governing documents and shall provide the allegedly offending owner with reasonable due process and an opportunity to be heard in an attempt to abate the nuisance administratively prior to going to court for injunctive relief. As with all enforcement actions, the association should investigate the claim(s) and act within its enumerated powers in addressing the issue.
However, when the nuisance does not involve the common elements but instead involves a “neighbor against neighbor” dispute, what is the association’s obligation to get involved, if any? The answer is, it depends on the language in the governing documents and it depends on the nuisance that is being alleged. While owners often believe that the association has omnipresent power to enforce every issue in the association, often times, the association cannot, and should not, get involved. Private nuisance disputes may only be a “neighbor against neighbor” dispute and the association may actually have no legal standing to get involved. Of course, the association may still choose to act as an intermediary between the owners, in order to facilitate harmony and perhaps a potential resolution.
Examples of a Nuisance in an Association Setting
Smoking
Courts have held that smoke constitutes a nuisance under common law principles. See Thomsen v. Greve, 4 Neb. App. 742, 751, 550 N.W.2d 49, 55 (Neb. App. 1996) (“ . . . at least in our society, to have the use and enjoyment of one’s home interfered with by smoke, odor, and similar attacks upon one’s senses is a serious harm.”). In at least one state, Utah, the legislature enacted a statutory provision (Utah Code 78-6-1101(3)) which defines and treats tobacco smoke migration from one unit to another as a nuisance. The statute permits for a [private] right of action for a violation.
Smoke has become an increasingly prevalent private nuisance issue in many communities, seemingly due to a decreasing number of smokers. These complaints can be “neighbor against neighbor” and/or can involve the common elements and the association. Should an association even get involved when it is neighbor against neighbor in a smoking dispute?
Based on a case from Orange County California, the answer appears to be yes. In Chauncey v. Bella Palermo Homeowners’ Association, et al., 3/28/2011, Cal. Super, Case. No. 30-2011-00461681-CU-OR-CJC, a jury found an association negligent for failing to resolve a secondhand smoke dispute between neighbors in a condominium. The plaintiffs alleged that the tenant-neighbors and their visitors smoked “incessantly” on the patio adjacent to the plaintiffs’ condo as well as the adjoining sidewalks in front of their home, with the “constant infiltration and presence of secondhand smoke” entering their condominium through windows and a sliding-glass door which was a nuisance to the family. They alleged that despite their repeated complaints, the homeowners association, management company, tenants and the neighboring condominium’s owner/landlord did not stop the problem.
The Plaintiffs asked the jury to award them $120,000 and after a five-week trial, jurors awarded the family $15,500 in damages ($6,000 for economic damages and $9,500 for emotional distress (the jury found the HOA to be sixty percent responsible for the emotional distress damages, while the management company, the owner and the tenants were held liable to lesser degrees). The jury concluded that the association and the management company failed to ensure the non-smoking family’s right to the “quiet enjoyment” of their own unit. (Source: “Condo owners win secondhand smoke case”, Orange County Register, Marilyn Kalfus, March 12, 2013. http://www.ocregister.com/articles/smoke-499353-association-secondhand.html).
Interestingly, the Bella Palermo Homeowners’ Association governing documents provide, in part, at Section 9.03: “Nuisance. No noxious or offensive trade or activity shall be permitted upon any part of the covered property, nor shall anything be done thereon which shall in any way interfere with the quiet enjoyment of each of the owners of his respective residence.” Thus, while not specific as to the association’s responsibilities, a jury concluded that it was indeed the association’s responsibility to ensure the family’s “quiet enjoyment” of their unit.
Noise
Noise can be very subjective as it relates to whether or not it actually constitutes a nuisance, and it can literally come from every imaginable source, including… a baby. In 2015, some Connecticut condominium owners with a one-year-old son received the following note from their neighbor:
“Please consider buying a parenting book or consult with a child care expert . . . “[y]our baby should not be crying that loudly and for that long. Try more calming techniques, music, turn on a vacuum, rocking chair, go for a walk … anything!”
The note goes on to provide, “[i]f you don’t make changes immediately, you risk being fined by [the homeowners’] association.” The neighbor relied upon Section 4 of the Association’s Rules and Regulations that provides that excessively loud noise that interferes with the rights of neighbors is subject to possible fines.
However, does the Association have any authority to fine owners for a crying baby or to get involved? It turns out the HOA did get involved – a previous noise complaint by the same neighbor actually prodded the HOA to send the parents a warning which warned that they would be fined if the child continued to cry. (Source: http://www.realtor.com/news/trends/neighbor-files-noise-complaint-against-crying-baby)
My advice as an Association Attorney would have been for the Association to not send such a warning due to fair housing issues and other concerns. The fact that an owner lodged a complaint does not mean that the Association needed to get involved and send the parents a note about a crying baby. There are few other examples that would get an entire jury to dislike an Association such as this one.
Hot Topic: Medical Marijuana
While related to the smoking discussion above, due to the “smoke” emanating from the smoking of medical marijuana, this issue involves the legal use of marijuana for medical reasons, not simply recreational use. Accordingly, a unit owner who is prescribed medical marijuana could request a “reasonable accommodation” under the federal Fair Housing Act, 42 U.S.C. §§3601 – 3631, if the marijuana is prescribed to treat a disability. Also, some states have constitutional protections (Colorado) for marijuana use for debilitating conditions and others (Montana) statutorily permit its use for medical reasons. Therefore, associations need to be aware that the use of medical marijuana may be protected and a “nuisance” complaint related to same will need to be properly evaluated and handled with the advice of counsel.
While it is not clear if it involved medical marijuana, an example from New York City from a condominium located at 400 Central Park West involved a Board of Directors who sued residents under a nuisance theory for chronic (pun intended) marijuana smoking where the smoke and odor infiltrated the other areas of the condominium building. (Source: http://nypost.com/2016/03/31/stoner-tenant-is-smoking-out-central-park-west-condo-lawsuit/)
It is noted that Colorado also permits the use of “retail” marijuana that is not associated with medical necessity. Retail marijuana is intended for private, personal use, and such use is only legal in certain locations not open or accessible to the public. Accordingly, while the use of retail marijuana may be permitted in one’s “private” home, the protections associated with said use are not likely as strong as those associated with the use of medical marijuana in a private home and an association’s ability to deal with such an issue as a nuisance may not be as [legally] complicated.
In Summary
Associations need to be cognizant of nuisance issues and must be able to handle them correctly … assuming that they need to get involved. Before acting on a nuisance complaint, an association should elicit the cogent advice of counsel to ensure that any action by the association is both necessary and proper.
Edward Hoffman, Jr., Esq.
* The content for this Blog post is based upon the prior written work of the author as originally published in the September/October 2016 issue of CAI’s Common Ground magazine and in the November/December 2016 issue of the CAI PA-DelVal’s Chapter’s Community Assets magazine.