A nuisance is much like any other alleged violation of an association’s Governing Documents in that there must be a power source for the association to take enforcement action. While it is easy to allege that someone is “creating a nuisance,” it is often more difficult to prove that a nuisance is actually taking place. Before an association heads down the road of enforcement on a nuisance allegation, take a look at the nuisance language in the CC&Rs to determine whether the alleged activity violates the plain language of the section. This review is part of the board’s obligation to investigate alleged violations.
The initial investigation might reveal that the activity violates the nuisance language or it might demonstrate that it does not. From here the board can determine what further investigation might be necessary and what type of enforcement action to take. Depending on the nature of the alleged actions, consulting with legal counsel might be necessary.
Boards and managers should remember, however, that activity that is an alleged nuisance might also violate a specific provision of the CC&Rs that might be much easier to prove. For example, an unkempt front yard might be alleged to be a nuisance, but might also violate the specific provision requiring an owner to maintain his or her property. When performing the initial investigation of Governing Documents to determine whether there might be a violation, don’t forget to review other provisions that might be much easier to apply.
Navigating alleged nuisances doesn’t have to be difficult. Investigate the alleged facts and the Governing Documents and the answer that is best for the community will almost always make itself clear.