18 Jun The Nuisance Next Door
Common Ground Magazine™ May/June 2020
BY PAMELA BABCOCK
Noise, odors, hoarding, and other nuisances can turn a once-idyllic community on its head. There’s a remedy for everything.
©2020 Community Associations Institute
NEIGHBORS CAN BE GREAT. Some still show up on doorsteps with a serving of food and sympathy during tough times. Some will pick up your packages and mail while you’re away or help you with minor repairs and maintenance. Some are perfect for chatting with while walking the dog and can be a sounding board for ideas, worries, and life’s challenges. Some become best friends.
Neighbors also can be nuisances. Some interrupt your sleep with floodlights aimed directly at your windows. Some party loudly late into the night. Some stink up the place by smoking. Some are hoarders whose stuff overflows into common areas, and some threaten to retaliate against those who complain about them.
Nuisance neighbors can turn a once-idyllic community on its head. They can affect the well-being and safety of homeowners and, in the worst cases, may ultimately diminish the appeal of the community and affect property values.
As millions of Americans have been quarantined because of the COVID-19 outbreak and the country faces an inevitable recession, some experts fear neighbor-nuisance problems will only escalate, particularly among neighbors who never seem to get along anyway.
“I’ve got two homeowners who just hate each other and have this tit for tat kind of thing going on and ramp it up each time,” says Scott D. Weiss, an attorney with Ortale, Kelley, Herbert and Crawford in Nashville, Tenn., and a fellow in CAI’s College of Community Association Lawyers. “And now that they’re going to be home more, it could get a lot worse.”
Some association attorneys say they’ve seen an uptick in nuisance cases over the past few years, and they don’t expect the problem to end any time soon.
“I can honestly say that in the more than 30 years that I have been doing this work, we have more enforcement actions pending now than we have in the past,” says David C. Swedelson, a senior partner with SwedelsonGottlieb in Los Angeles.
He blames the tone and tenor of political discourse in the country over the past several years. “I just think a lot of people are taking a cue from some of our leaders and becoming more aggressive. They’re not willing to say, ‘OK, association, I’ll fix this problem.’ They’re saying, ‘You can’t tell me how to live in my unit.’ And they’re fighting more.”
WHAT’S A NUISANCE?
Nuisances are generally defined as conduct that interferes with another owner’s or resident’s quiet enjoyment of their home or unit. That can include activities that create conditions that are hazardous, noxious, or offensive, or a violation of a law. Association governing documents typically contain some language in the covenants relating to nuisances, although it’s generally not very specific.
There are a number of remedies available to community associations to address nuisances.
“Every set of documents I’ve seen contains a general nuisance provision,” explains Donna DiMaggio Berger, a shareholder with Becker in Fort Lauderdale, Fla., executive director of the Community Association Leadership Lobby, and a CCAL fellow. Berger says one of the first things she does when updating a client’s documents is to expand the definition of what activity fits within the definition of a “nuisance.”
Boards need protocols as well as specific criteria in their governing documents to define and address nuisance activity, according to Berger. Other tools in the arsenal to combat nuisance activity include the ability to impose fines, suspend a violator’s common area use rights, and pursue arbitration, mediation, or litigation, Berger adds.
Swedelson encourages associations to review their rules, fine policy, and enforcement that has taken place at least every two years. “Many associations don’t have a problem until some new bad apple moves in. All of a sudden, associations realize that the rules are antiquated, their fines are too low, and they’re not a deterrent,” Swedelson says.
Activities deemed to be nuisances also should be subject to consistent and uniform enforcement. Don’t go after an unpopular owner for shouting and whooping it up while pedaling on her exercise bike but then tolerating tone-deafening behavior from someone who is well-liked or even worse, a board member.
“Consistency is key,” Berger says, adding that it’s also important to consult with association legal counsel.
WHAT’S THAT RACKET?
Noise, including that from the bass on a neighbor’s surround sound system, intimate relations upstairs, or footsteps shuffling overhead, still is a top hit on the nuisance list.
Swedelson says he thinks noise complaints may even be on the rise, thanks to how easy it is for someone to buy and install hard-surface flooring.
“They take their carpet and padding out and put the flooring down with no underlayment and no soundproofing,” Swedelson explains. “The next thing you know, the association gets complaints that the person below can’t sleep because of all the noise.”
Usually, noise complaints can be solved by bringing the neighbors together. Alternative dispute resolution, for example, sometimes quiets the issue.
WHAT’S THAT SMELL?
As laws surrounding the use of marijuana are relaxed, smell complaints are sprouting up more frequently, particularly in condominiums since odors can travel via HVAC systems or open windows.
Secondhand smoke from tobacco and, more recently, cannabis can greatly impact a neighbor’s quality of life and, depending on the design of units and soundness of construction materials, “make a neighboring unit uninhabitable,” Berger says. The problem can be particularly bad for residents with underlying health issues that are worsened by the presence of smoke or families with children.
“With the COVID-19 pandemic afoot, secondhand smoke has become even more of an issue as people have been forced to work from home and shelter in place,” Berger adds.
Trying to seal up HVAC equipment sometimes works. The only alternative may be to institute a no-smoking-inside-your-unit policy. “We’ve had to put that in place a couple of times,” says Steve Cousino, CMCA, AMS, a senior association manager at Caribou Property Management in Middleton, Wisc.
Colorado was the first state to legalize both medical and recreational marijuana. Late last year, owners of a Denver condominium unit complained about the smell of cannabis emanating from the unit below.
The association prohibits smoking of any kind in common areas but doesn’t restrict smoking in individual units. Board President Chuck Halaska says the board explored whether something could be done between the floors or if a room air purifier would staunch the stench. It also pondered whether there might be a construction defect affecting the entire building, leading to the potential for similar complaints down the road.
This complaint was easier to smoke out than most. The association hired a building envelope specialist who, armed with a laser-thermometer gun, determined that the smell was traveling because of bookcases installed by the previous owner in the air space between the interior and exterior wall. The bookcases were an intrusion into a common element and done without association approval, Halaska explains. The smell was so strong because the bathroom exhaust from the smoker’s unit was just below where the bookcase had been installed in the unit above.
“Temperature readings indicated outside air was coming in through the bookcase, thus allowing in the offensive smell,” Halaska says.
The complaining owners plan to remove the bookcase, reinstall insulation, and seal the interior space from the outside. “Experts say that should fix the problem,” he notes.
WHAT’S THIS STUFF?
Hoarding, particularly troublesome in condominiums with shared hallways and HVAC systems, can lead to noxious odors, pest or rodent infestation, and fire dangers.
Cousino has been dealing with a hoarder at a 24-unit Madison, Wisc., condominium for a few years.
When he contacted the local health department a couple of years ago, he was told there wasn’t any health danger, but that was before a major mouse infestation. A pest control company treated all of the units but couldn’t access the hoarder’s, so mice are still a bit of a problem, albeit not as bad.
The building dates back to the 1960s and doesn’t have fire sprinklers or a central alarm system. Cousino recently asked the local fire department to inspect individual units to ensure occupants have installed the proper fire and smoke alarms. He hopes fire officials might be able to force the hoarder to clean up her act.
Berger says most hoarding problems revolve around mental health issues, so it’s important to tread carefully.
WHOSE CAT IS THAT?
While they may have good intentions, residents who feed feral cats are another frequent nuisance.
“People love animals, but when you have 200 cats living in the back of a condominium common area, that is obviously a health risk,” says Edward Hoffman Jr., cofounder of Barrow Hoffman law firm in Warminster, Pa.
Weiss, who is a past president of CAI’s Tennessee Chapter, was recently contacted by the manager of a Clarksville single-family community about a cat colony. As with all nuisance complaints, he asked the manager to gather evidence, such as pictures or video from a doorbell camera, exterior security camera, or cellphone.
In most cases, Weiss advises associations to write a letter to the person advising them of the nuisance. If there’s no response after two or three letters, then he recommends that the matter be turned over to the association attorney.
Weiss typically sends a cease-and-desist letter to the owner with a couple of pictures “showing them in the act.” If the person is witnessed repeating the violation, Weiss often files a court order demanding the person stop. If the person violates the order, they’ll be in contempt of court, he adds. Photographs can be helpful evidence if he has to file a lawsuit.
Weiss doesn’t recommend that managers or board members talk to the person directly: “You don’t know who you are dealing with, what their mental state or background is, or what is going to set them off,” he says.
Most agree that many nuisance complaints arise simply because two neighbors just can’t get along.
“There’s always one or two people who just seem to have a big chip on their shoulder. Everything makes them mad, and they lash out,” Cousino says. “For the people I hear from all the time, I think it’s something deeper that’s making them mad or upset, and this is one way they can release it.”
Last year, Weiss dealt with a situation in a single-family subdivision where a resident complained that another neighbor’s dog was barking incessantly. It turned out that the man was actually “going over and taunting the dog by kicking the fence,” Weiss says. “Just stupid, childish types of things.” He asked the complaining homeowner to provide written statements from three other homeowners who also felt the dog was a nuisance as a condition of him getting involved on behalf of the association.
“I did this because I wanted to be sure that his complaint was legitimate and not merely a homeowner who has an axe to grind with his neighbor,” Weiss explains.
After receiving a statement from just one other owner, he and the board decided the association would not intervene. According to the governing documents, the complaining homeowner has the right to hire his own attorney and enforce the nuisance provisions.
“A lot of times, it comes down to people just want someone to listen to what they have to say,” Weiss adds.
What other solutions can associations pursue? Unfortunately, there’s no one-size-fits-all approach.
“Just as every nuisance is different, the solutions must be customized as well,” says Berger, who adds that it’s important to determine why the nuisance is occurring in the first place.
Last year, she was contacted by a 55-and-over community in Miramar, Fla., where an elderly woman had been sleeping in the common areas at night, and the board wanted to pursue it as a nuisance.
“I delved a little into why this was happening, and we learned that the woman was being abused by her spouse and was choosing to sleep on the sofa in the lobby to avoid her abuser,” recalls Berger, who worked with local law enforcement and family members to resolve the problem.
SAY A CONDOMINIUM owner hurls obscenities at another resident, leaves threatening notes on her door, and vows he’ll slash her tires if she parks in a certain space.
Associations used to avoid getting involved in neighbor-against-neighbor spats and encouraged them to work it out amongst themselves, unless the action affected the entire community, violated specific sections of the governing documents, or posed a threat to the health and safety of residents.
U.S. Department of Housing and Urban Development regulations adopted in 2016 regarding harassment changed that dynamic, according to Scott D. Weiss, an attorney with Ortale, Kelley, Herbert and Crawford in Nashville, Tenn., and a fellow in CAI’s College of Community Association Lawyers. Now, associations could be held liable for the discriminatory actions of residents who harass or create a hostile environment for others.
HUD’s position is that a community association has a duty to act when it “knew or should have known” of the harassment of one resident by another.
HUD will examine the nature, context, severity, scope, frequency, duration, and location of the conduct, among other factors, before determining whether a “reasonable person” under similar circumstances and with a similar background also would feel that a hostile environment exists.
“Community associations now have a duty to investigate harassment claims, take steps toward stopping harassment if they find evidence of it, and follow up to ensure the behavior doesn’t continue,” says Weiss.
A reasonable response for a board forced to deal with a harassment claim may be to investigate the claim, attempt to mediate through cease-and-desist notices to the offender, and possibly levy fines, if applicable, according to Weiss. —P.B.
Pamela Babcock is a writer and editor in the New York City area.