The dog barks, and the parrot squawks. A neighbor is cooking with too much garlic, again. An owner is smoking non-stop on their balcony making it unpleasant for everyone else. A neighbor, several neighbors, or even many neighbors are complaining to the board. What is a community association board to do?
In dealing with any possible nuisance, the board should first decide whether or not the activity in question constitutes a “nuisance.” Bear in mind, an individual’s personal hypersensitivity to another’s activity is not a nuisance. Ask yourself, if you were the ordinary person, a judge or a member of the jury, do you believe that the conduct in question is so noxious that it truly rises to causing a nuisance? Is it only one person, or family, that is bothered by the alleged noxious activity or is it half of the community? Singular neighbor to neighbor disputes are not a matter for the board to contend. The board should not put itself into a position as the “referee.” Arguably, the only time a board may be obligated to act in a neighbor to neighbor dispute is when a Fair Housing Act violation occurs or when the board has actual knowledge of a life-threatening activity taking place.
In the event the board determines that a nuisance is actually occurring, then it is time to act. The board, typically through the manager, should first send a letter to the offending owner alerting them to the nuisance behavior, explain how the behavior is creating the nuisance and importantly, provide the specific relief sought. The letter should be firm, but not over-the-top. Ask yourself, if you were the owner causing the nuisance behavior and you received the letter from your association, would you respond in a positive manner? Remember the golden rule, to treat others as you wish to be treated.
After sending the initial letter, the dog still barks, and the parrot still squawks. Now what? Well, it is time to consider other measures such as fining and use right suspensions. Pursuant to legislation first enacted in July 1, 2015, the board, at a properly noticed board meeting, must set the fine or use right suspension. However, before a fine or suspension can be imposed against the offending owner, a 14-day written notice and opportunity to appear in front of the grievance committee (a/k/a the “fining committee”, the “rules committee”, the “violations committee”, etc.) must be sent to the owner. If the grievance committee does not agree exactly with the board’s prior decision to fine and/or suspend use rights, then the fine or suspension may not be imposed. If the grievance committee does so agree, then the offending owner must be provided with written notice of such decision.
If the nuisance continues, another tool that is available to community associations is the filing of a lawsuit against the owner causing a nuisance. In some instances, it may be necessary for condominium associations to file an arbitration action with the Division of Florida Condominiums, Timeshares, and Mobile Homes. For a homeowners’ association, before filing a lawsuit, the association must comply with mandatory mediation requirements set out in Chapter 720, Florida Statutes.
If the arbitration or mediation, as the case may be, is not successful in curbing the nuisance behavior, then it is time to seek relief by filing a lawsuit in the local Circuit Court asking for an injunction to curtail the behavior. Obviously, the board will need to discuss this situation, in advance, with the association’s legal counsel.
Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. He is a regular columnist for The Condo News, a biweekly publication and was inducted into the 2012, 2013 & 2014 Florida Super Lawyers. He can be reached at 561-241-4462.
