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Real Estate & Property Law

: a View from the property line

Don't Be A Nuisance!

By William G. Gammon

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It's midnight and the rhythmic sound of drums and a screeching guitar blare out from some youngster's speakers parked outside your home. That's the third time this week. You bury your head in the pillow and hope that the noise will cease, but you are granted no relief. So you drag your weary bones out of bed and go outside to confront the little noisemaker. But to your surprise, the source of your sleeplessness has finished his serenade and has left the premises. What's a frustrated, tired resident to do? Well, the Association's restrictive covenants provide some measure of relief while state law does the rest.

Loud noises, foul odors and intrusive activities, among other unpleasantries, all fall under the category of nuisance. In the legal context, nuisance is some thing or some activity that substantially interferes with an individual's use and enjoyment of her land(s).

The Association's restrictive covenants provide the basis for most neighborly nuisance disputes. A typical nuisance provision will read like this: "no noxious or offensive activity of any sort shall be permitted nor shall anything be done on any Lot which may be, or may become, an annoyance or nuisance to the neighborhood." The provision is sufficiently broad to encompass all manner of possible activities that could be considered nuisances to the homeowners. Once the nuisance provision is in place, the Association must have a uniform method for enforcing such. This typically includes notice of violations, an administrative hearing, and an appeals process with an opportunity to remedy the conduct by the offensive party or parties.

Sometimes, the Association's nuisance provision won't be the panacea needed to cure the offensive behavior. Luckily, state law provides for criminal and civil penalties and causes of action to arrest this unwanted activity. Criminal nuisance laws only take effect, usually, once the offensive activity has risen to a level of "public nuisance," meaning that the conduct is offensive to such a degree as to warrant the intervention by municipal, county or state authorities. Local government officials are generally empowered to handle these types of violations, issue sanctions and enforce the criminal code for that municipality. City ordinances or county statutes provide explicit direction on the method of enforcement, procedures for notice and hearings, and ultimately, what remedies are available in the form of penalties, sanctions, and/or fines for the offending party or parties.

Civil litigation is typically the last resort when combating nuisances in the subdivision or from nearby properties. If the nuisance is between neighbors, the enforcement through civil remedies is difficult because the process inherently smacks of a "neighborly dispute" which the courts are loathe to address or get involved with. This does not mean that civil suit is a lost cause, but because of the temporary nature of most nuisance complaints (ie. loud music played at night), evidence is hard to gather, unless the offender repeats his conduct on a regular basis and video tapes can capture the activity for use in court proceedings. Otherwise, it becomes a "he said she said" argument in open court without concrete evidence of the violative conduct.

Now, if the nuisance activity originates from nearby properties or outside of the subdivision, then filing a civil suit may be the best, or only, alternative. Since the violation occurs outside the authority of the Association, restrictive covenants cannot protect the embattled homeowner. By filing suit, the homeowner and/or Association can seek civil and criminal sanctions and damages recovery in a court of law using the same statutory rights as prescribed above.

Remember that the nuisance legal standard is one of reasonableness: would a reasonable person find the conduct or activity so annoying such that the use or enjoyment of land(s) is substantially affected? What this means is that ultimately, it will be up to the judge or jury to decide whether the conduct met this standard, which determines whether or not the homeowner or Association is successful in its nuisance claim.

*special thanks to David J. Marmins, Melanie D. Becknell, "How Annoying?", Common Grounds, vol. XXXIII, no. 2, March/April 2007 from which this article was based upon.

Full post as published by a View from the property line on March 13, 2007 (boomark / email).

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