Ask an expert: About your condo, HOA rules

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By: Steven R. Braten Esq. Special to the Boca newspaper
Attorneys at Goede, Adamczyk, DeBoest & Cross, respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, civil litigation, estate planning and commercial transactions.
Here are attorney Steven Braten’s answers to your questions:
Q. 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?
M.M., Boca Raton
A. Your question is a common question asked by many of our association and unit owner clients. Your community’s nuisance provision is similar to Florida’s common law definition of “nuisance” and your board has not adopted any rules and regulations on 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. 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. It is impossible for association boards and their legal counsel to conceive of every type of obnoxious or 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.” Woodside Village Condo Assn., Inc. v. Jahren. 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 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. Coronado Condo Assn., Inc. Ultimately, nuisance cases will rise or fall on the testimony and documentary evidence presented to the Court.
Steven R. Braten Esq., is Managing Partner, Palm Beach of the law firm Goede, Adamczyk, DeBoest & Cross. Visit www.GADClaw.com or ask questions about your issues for future columns, send an inquiry to: bocaquestion@GADClaw.com. 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. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

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