Some days, operating a community association can feel a little bit like a dumpster fire. The pool is closed at the beginning of summer due to unexpected repairs, Ms. Smith has called for the umpteenth time complaining of her neighbor who chain smokes on the balcony and blares music all night long, Mr. Brown has emailed about his neighbor leaving her back patio lights on all night that shine directly into his bedroom window, and the asphalt contractor has failed for the third time to fill a pot hole in the community. Of all of the things that can and do go wrong with community association operations, handling alleged nuisance claims may be one dumpster fire that an association may avoid putting out by deeming it a neighbor-to-neighbor dispute.1
We have all seen the relatively standard nuisance provision in a community association's declaration of covenants, conditions and restrictions ("CC&Rs"). The provision may read:
When residents complain of a neighbor's smoking, excessive noise, barking dogs, shining lights, night-owl hours and other behaviors that may be considered a nuisance, community associations often turn to the CC&Rs' nuisance provision.2 The challenge with deeming a particular behavior a violation of the nuisance provision is that nuisance complaints can be highly subjective. What one neighbor considers a nuisance may not be considered a nuisance by a judge or jury. Having a few neighbors complain about a particular behavior makes it more likely that the complained of behavior is a true nuisance and not one particular neighbor's sensitivity.
For an actionable nuisance claim, a community association will need to show that the complained of behavior unreasonably interferes with the neighbors' use and enjoyment of their residences, causing significant harm.3 The interference must be "substantial, intentional and unreasonable under the circumstances."4 It must constitute "more than slight inconvenience or petty annoyance."5 There must be a real and appreciable invasion of another's interests.6 Recurrence over a substantial period of time is often necessary to establish that the harm is significant.7
Where multiple neighbors complain of a reoccurring nuisance, a community association may issue a courtesy notice of violation and begin working through its violation enforcement process if the nuisance continues. When a community association issues violation notices based on neighbor complaints, the association will need to disclose the neighbors' names to the property owner in violation if requested by such owner. This is provided for by Arizona law, which at A.R.S. § 33-1803(D) (planned communities) and A.R.S. § 33-1242(C) (condominiums), requires community associations to provide the first and last name of the person who observed the violation if requested by the property owner.
If and when a community association exhausts its internal violation enforcement process, it may refer the violation to the association's legal counsel, or it may decline to take further enforcement action. The same holds true if only one neighbor complains of particular behavior that may or may not rise to the level of a nuisance. This latter option is contingent on whether the community association has the right or the obligation to enforce the CC&Rs' restrictions. If the community association has the right, it can choose when to, when not to and how to enforce, provided it treats all similarly situated owners fairly (i.e., if neighbors complain of the same nuisance with two different owners, the association cannot sue one owner and not the other, doing so may raise claims of unequal enforcement).
If the community association chooses not to take action, the CC&Rs may empower the neighbors to take action themselves to enforce against the nuisance, or if the nuisance amounts to a county or municipal code violation, either the association or the neighbors may also fill code complaints.
At the end of the day, whether or not a community association takes action to address nuisance claims is a fact specific analysis. Community associations must consider who is complaining, how many neighbors are complaining, what is the complained of behavior, how long has the complained of behavior been occurring, etc. Community associations must also review their CC&Rs to see what their options are when it comes to enforcing or not enforcing against violations.
Footnotes
1 Note that not all nuisance claims may be disregarded as a neighbor-to-neighbor dispute. There could be specific language in a community association's CC&Rs that require the association to take action under certain circumstances. Nuisance issues could also implicate federal and state fair housing laws if there are hostile housing or disability-related concerns.
2 Depending on the particular nuisance, other provisions of the CC&Rs may be implicated and enforceable. In addition, depending on the extent of the board of director's rule-making authority, there may also be rules and other regulations implicated and enforceable.
3 Nolan v. Starlight Pines Homeowners Ass'n, 216 Ariz. 482, 489 (App. 2007) citing Graber v. City of Peoria, 156 Ariz. 553, 555 (App. 1988), Restatement (Second) of Torts ("Restatement") §§ 821D & 821F (1979).
4 Armory Park Neighborhood Ass'n v. Episcopal Cmty. Servs. in Ariz., 148 Ariz. 1, 7 (1985).
5 Restatement § 821F cmt. c.
6 Id.
7 Kubby v. Hammond, 68 Ariz. 17, 25, 198 P.2d 134, 140 (1948); see also Restatement § 821F cmt. g "[C]ontinuance or recurrence of the interference is often necessary to make the harm significant.").
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
