Nuisance is defined as a person or thing that causes inconvenience or annoyance. While the definition may imply that a nuisance is often insignificant much like a buzzing fly, when left unaddressed nuisances, in a COA setting, can lead to large consequences.
Nuisance complaints often rise to the level of lawsuits both by and against condominium owners. The Condominium Declaration usually states what constitutes a nuisance. Please see below for an example nuisance provision:
No nuisances shall be allowed upon the Condominium property nor shall any use or practice be allowed which is a source of annoyance to residents or which interferes with the peaceful possession and proper use of the Condominium Property by its residents. All parts of the Condominium Property shall be kept in a clean and sanitary condition, and no rubbish, refuse or garbage allowed to accumulate nor any fire hazard allowed to exist. No unit owner shall permit any use of his unit or of the Common Elements which will increase the premium rate of casualty or liability insurance upon those portions of the Condominium Property insured by the Association, except with the express approval of the Association.
Because of the broad language in the provision, nuisances can vary greatly but all of them can cause annoyances to neighbors or interfere with their peaceful possession.
Five Most Common Nuisances
As the smoking rate declines in the United States, complaints due to smokers and second hand smoke exposure have increased. While Rules and Regulations can be adopted banning smoking in individual units, it is important to review the Condominium Declaration outlining the powers of the board. It can be possible to obtain a preliminary injunction to curb the smoking provided there is adequate language in the Declaration.
- Home Businesses
In today’s world, telecommuting and home businesses have become so common that it is estimated that approximately 50% of U.S. businesses are home-based businesses. Some Condominium Declaration contain “blanket bans” on commercial activities, however if a business is allowed by the Declaration, it should probably include a special provision limiting the activities that the business can conduct such as: manufacturing, solicitation in common elements, regular visits from customers and deliveries, all of which could easily become a nuisance.
At some point or another, almost everyone has experienced a noisy neighbor above who seemingly only walks in high heels on wood floors in the middle of the night. Not surprisingly, noise from units above is a very common complaint in condominium associations with stacked units. Unfortunately, short of non-compliant flooring systems or provisions specific to decibel levels emanating from units, this nuisance is hard to remedy. Noise is also the most common type of nuisance complaint that is more likely a neighborly dispute than an actual nuisance.
While pet nuisances are a regular issue at most associations, those complaints predominantly pertain to dogs. The most common types of dog complaints are usually relative to loud or continuous barking from within a unit, owners failing to clean up after their dogs, and damage to common areas. When drafting Rules and Regulations, it is important to address the association’s position on pets and associated fines and deposits. Additionally, special protections exist for dogs deemed to be service animals.
- General Tenant Behavior
Sometimes owners or tenants breach more than one provision of the Condo Declaration leading to multiple nuisance complaints. It’s important to be thorough when drafting Condo Declarations and Amendments thereto to anticipate foreseeable issues and avoid costly litigation and remediation expenses.
Important Provisions in the Condominium Declaration
While we have mentioned Condominium Declarations a few times, it is important to know exactly what they are and what they contain. A Condominium Declaration is a document that establishes a Condominium Regime and is filed in the mortgage records in the parish in which the condominium is located. The Declaration must contain provisions regarding the following items:
(1) A statement submitting the immovable property to a condominium regime.
(2) The name by which the condominium is to be identified, which name shall include the word “condominium” or be followed by the words “a condominium”.
(3) A legal description of the land.
(4) An identification of each unit by letter, name or number, or combination thereof, so that no unit bears the same designation as any other unit.
(5) A written description delineating the precise boundaries of each unit and any limited common element appurtenant thereto.
(6) The undivided shares, stated as percentages or fractions, in the common elements which are a component part of each of the units.
(7) The proportions or percentages and the manner of sharing common expenses and owning common surplus.
(8) The proportionate voting rights of the unit owners in the association.
(9) The method of amendment of the condominium declaration.
(10) The name of the association and the legal entity under which it is organized.
(11) The procedure for collecting from the unit owners their respective shares of the common expenses assessed.
The Louisiana Condominium Act also provides that a condominium declaration may contain other provisions which are not inconsistent with the rest of the Act. We recommend including provisions regarding use restrictions, responsibility for maintenance and repair, sale and lease restrictions, occupancy restrictions, and the authorizations of attorney’s fees and costs incurred by the Association when collecting assessments and/or dues from owners.
For help handling all of your COA issues, call the attorneys at Favret Carriere Cronvich who will meet with you to determine the proper course of action for your issue.