What does a condo’s ‘nuisance’ provision mean?

Question: My neighbor is being pursued by our board for a seemingly benign or conjured violation, which could result in a fine being levied. Our condominium documents have a "boiler plate," catch-all nuisance provision. Can an open-ended "nuisance" provision be used to manufacture a so-called violation? – K.M., Stuart

Answer: Your question is a common question asked by many of our association and unit owner clients when an owner causes a disturbance, whether it be loud parties, dog barking at all hours of the day or night, or even when a unit owner is verbally abusing neighbors, board members and vendors.

Although I am not aware of the specific facts of the situation to which you refer, your community's nuisance provision is similar to Florida's common-law definition of "nuisance." You stated that your condominium declaration states that "no use or practice which is either an annoyance to unit owners or an interference with the peaceful possession and proper use of the Condominium Property by the unit owners shall be allowed." You also stated that the board has not adopted any rules and regulations to expound upon what is considered to be a "proper use" of the Condominium Property.

I agree with you that a community association should adopt rules and regulations concerning prohibited uses of the Condominium Property and prohibited uses of condominium units. This way, unit owners, renters and guests are all on notice of what behavior is considered to be a nuisance.

These rules must be reasonable, and not arbitrary, or have no relation to the intended purpose prohibiting nuisance behavior. That said, it is impossible for association boards and their legal counsel to conceive of every type of obnoxious or unreasonably annoying behavior. Accordingly, in the absence of specific rules, it is appropriate to rely upon a general nuisance provision in the declaration. Courts will consider nuisance scenarios on a case-by-case basis.

In the condominium context, Florida "courts have recognized that condominium living is unique and involves a greater degree of restrictions upon the rights of the individual unit owners when compared to other property owners," according to Woodside Village Condo Ass'n, Inc. v. Jahren, 806 So. 2d 452 (Fla. 2002).

Also, the Courts have long recognized "that the law of private nuisance is bottomed on the fundamental rule that every person should so use his own property as not to injure that of another, as expressed in the maxim "Sic utere tuo ut alienum non laedas" and that "anything which annoys or disturbs one in the free use, possession, or enjoyment of his property, or which renders its ordinary use or occupation uncomfortable, is a 'nuisance' and may be restrained." - Baum v. Coranado Condo Ass'n, Inc., 376 So. 2d 914 (Fla. 3rd DCA 1979) (quoting Jones v. Trawick, 75 So. 2sd 785, 787) (Fla. 1954)); see also Rae v. Flynn, 690 So. 2d 1341, 1342 (Fla. 3d DCA1997) (holding a residential property owner has a duty not to unreasonably interfere with other persons' use and enjoyment of their property).

Ultimately, nuisance cases will rise or fall on the testimony and documentary evidence presented to the court.

Question: I have heard a lot of different opinions on whether my condominium association must "opt out" of the requirement to retrofit a condominium building with a fire sprinkler system by December 31, 2016. Can you please explain this issue? – M.D., Hutchinson Island, FL.

Answer: Excellent question! There have been numerous opinions circulating over whether all condominiums are subject to Florida's fire sprinkler retrofit requirement, which originates from a national model code NFPA 101 Life Safety Code that the Florida Legislature adopted. Florida's Prevention Code can be found at Florida Administrative Code 69A-3.012 ("Code").

Over the past 15 years, the deadline to comply with the retrofitting of condominium buildings that are covered with a fire sprinkler system has been extended. To be subject to the fire sprinkler retrofit requirement, your condominium association's building or buildings must have the highest occupiable story higher than 75 feet above the lowest level of the fire department's vehicular access. It must also not currently have fire sprinklers in the units and common areas of the building. The Code does not require an existing and properly functioning fire sprinkler system to be upgraded.

To verify whether your condominium building is subject to the fire sprinkler retrofit requirement you should contact your local Fire Official. If you are a low-rise or mid-rise condominium, should your association opt-out? Many of my clients are opting out to be "safe." To opt out of the Code's fire sprinkler retrofit requirement, Section 718.112 of Florida's Condominium Act requires the Association to obtain a favorable majority vote of the total voting interests of the condominium (i.e., a majority of all unit owners eligible to vote).

If your building meets the Code's height requirements and your association elects to opt out of the fire sprinkler retrofit requirement, your association will need to have its building(s) evaluated by a fire protection engineer and establish a plan for an Engineered Life Safety System (ELSS). For more information on this issue, I encourage you to contact your association's legal counsel.

Steven R. Braten Esq. is Managing Partner, Palm Beach of the Law firm Goede, Adamczyk, DeBoest & Cross. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein.

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