Does your HOA have a generalized rule on nuisances? Be careful how you try to enforce it. Your board could wind up with egg on its face – and spend association members’ hard-earned money on ill-considered actions against members of your community.
Here’s a case in point: In March of 1999, Diane Blumberg and her husband decided they would hold a weekend garage sale at a condominium complex called The Landmark Colony at Oyster Bay – a small development made up of 33 units in eight buildings.
The garage sale went off without incident. But the condominium association decided that the garage sale was a ‘nuisance,’ and moved to impose a fine of $250 on the couple – per day. For a two-day garage sale, that amounted to a $500 fine.
The couple refused to pay. The Condo association moved to place a lien on the Blumbergs’ condo unit.
Diane Blumberg and her spouse then sued to have both the fine and the lien on their dwelling voided, as well as attorneys’ fees and court costs. The condo association board decided to escalate matters, claiming over $4 thousand in late fees, dues and everything they could think of.
The heart of the issue: A paragraph in the condominium association’s covenant of restrictions that read, “No nuisance shall be allowed upon the property nor shall any use or practice be allowed which is a source of annoyance to residents or which interferes with the peaceful possession and proper use of the property by its residents.”
The result: The condominium association’s attorney got shot down in flames. At issue was whether the condominium board had the authority to impose this kind of fine for the simple fact that the Blumbergs held a garage sale.
The condo association got their way on some of the other claims against the Blumbergs not relevant here, but the court deemed that trying to apply a general ‘nuisance and annoyance’ rule against the Blumbergs not only required evidence that they held a garage sale, but also that they actually caused a nuisance or annoyance.
The court noted that since there was no specific rule that banned garage sales, it came down to whether the garage sale was truly a nuisance or an annoyance to other residents. The Association provided no evidence that anyone had been materially affected by the garage sale. No one had had their peaceful possession and proper use of the property interfered with, and there was no evidence presented that anyone had even complained.
Furthermore, the court noted that there was no evidence that anyone representing the association warned the Blumbergs that they would find their garage sale to be objectionable.
The underlying legal doctrine cited by the court is this:
“[N]uisance, as a general term, describes the consequences of conduct, the inconvenience of others, rather than the type of conduct involved.” (Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 569  [citation omitted].) An element of a private action for nuisance is that the inconvenience caused by the conduct complained of be substantial. (Id. at 570; PJI 3:16 .) To prosecute a private claim for a public nuisance, a plaintiff must prove particular damage resulting from the public nuisance. (Van Cortlandt v New York Cent. R.R. Co., 265 NY 249, 264 ; PJI 3:18.) There is no evidence that the garage sale either substantially inconvenienced other condominium residents or caused them particular damage.
The judge explained in the ruling that a condominium association bylaw duly agreed to by the member owners in accordance with the operating agreement that specifically banned garage sales would be easily enforceable. Indeed, such would be well within the purview of the Association’s power. Traditionally, courts have given wide latitude to homeowners associations and condo associations as ‘quasi-government bodies,’ even upholding the right to levy fines and place liens on properties, provided they are enforcing rules that have been duly adopted by proper procedures, in accordance with the community’s own bylaws and governing documents to which all homeowners buying into the association agree.
Furthermore, courts do not like to be placed in the position of having to substitute the judgment of uninvolved magistrates for the judgment of homeowners’ boards intimately familiar with their own neighborhoods.
The decision and concurrence in the landmark Levandusky vs. One Fifth Avenue Apartment Corporation goes into great detail about the appropriate level of scrutiny to apply in homeowner vs. association disputes, for those who are interested in how the sausage is made, as this particular decision is frequently cited in subsequent decisions.
But vague prohibitions of things like “nuisance” can be problematic. If an HOA or condo association wants to enforce a rule against nuisance, they must not only prove that the act that created the nuisance actually occurred, but they have the additional burden of being able to show that other owners and/or residents were, in fact, substantially affected by the act.
If you are on the Board of Directors of an association, and faced with a decision about whether to ‘go to the mat’ by taking a member of your own association to court over a relatively small matter, be sure that you are standing on the firm
In this case, the Association didn’t have the goods.
Writing about personal finance and investments since 1999, Jason Van Steenwyk started as a reporter with Mutual Funds Magazine and served as editor of Investors’ Digest. He now publishes feature articles in many publications including Annuity Selling Guide, Bankrate.com, and more.