Becker & Poliakoff

“Law of Nuisance Explained” – News-Press

“Law of Nuisance Explained” – News-Press

Q: I live in a townhome. My neighbors recently installed outdoor lighting in their back lanai. Bright lights flood into my home and are becoming a serious annoyance. Can my association request that my neighbors have their lights dimmed or removed to stop this nuisance? (T.S., via e-mail).

A:  I would suggest starting by speaking with your neighbor to attempt to resolve this matter privately and cooperatively. Sometimes a neighborly conversation is much more effective than efforts to involve the HOA.

You or your counsel should review your association’s governing documents to see if the lighting addition is covered by a specific provision of the community’s documents. Some associations require architectural review and approval for this type of action, some don’t. You can then determine if association approval was required, and whether it was asked for and given. These facts will generally guide whether there is role of the association in this matter.

Owners also have rights as to each other without involving the association. An appeals court decision from last year, called Roebuck v. Sills, involved a similar situation. Roebuck sued his neighbors over a noisy pool pump and allegedly annoying exterior lights and won the case at trial. The judgment was based on “common law nuisance,” rather than violation of the governing documents.

The trial court ordered Sills not to use their exterior lighting and pool equipment between the hours of 9:30 p.m. and 9:30 a.m. On appeal, the court started by noting that neighbors have a common law duty not to interfere with, or to render each other unsafe or insecure in life or in the use of their property. The court noted that while ordinary disturbances and annoyances don’t typically give rise to actionable nuisance claims, “noise can be a nuisance.”

The court went on to say that there is “no exact rule or formula” for deciding when a neighbor’s noise rises to the level at which a court will grant relief. Rather, courts evaluate nuisance actions by considering “the reasonableness of the use, as such use affects the private rights of others,” as determined from the facts and circumstances of particular cases. The application of common law nuisance standards mostly “presents an evidentiary issue” where a factfinder’s conclusions must be supported by competent, substantial evidence.

Q: Can a homeowners’ association board suspend a member’s right to vote at the annual meeting based on a violation of the association’s documents? (T.B., via e-mail)

A:  Section 720.305(3) of the Florida Homeowners’ Association Act states that if the governing documents so provide, an association may suspend the voting rights of a member for the nonpayment of regular annual assessments that are delinquent in excess of 90 days. Under general rules of statutory construction, the expression of one thing excludes others, so one could conclude that the right to suspend voting rights is limited to assessment non-payment. There may be room to argue this point since the legal underpinning of HOA’s is slightly different than condominiums, where the statutes are strictly construed.

Sections 720.305 and 311 of the Homeowners’ Association Act generally set forth the remedies available to an association for violation of the governing documents and rules of the association. These include the right to fine and suspend the right to use certain facilities after notice, and opportunity for a hearing. The statute also allows the documents to be enforced through court action, with the winning party usually entitled to recoup their attorneys’ fees from the losing party. Prior to taking a matter to court, the law also requires that the parties first attempt to resolve most disputes through a statutorily prescribed pre-suit mediation process.

Joseph Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to Past editions of the Q&A may be viewed at