A homeowner association’s covenants, conditions, and restrictions (CC&R) have many provisions that address a myriad of issues. It is typical to see CC&Rs with over 50 pages and some with well over 100 pages. With all these pages of legalese, some might believe CC&Rs would adequately deal with any potential issue that could arise within a homeowner association. It is not feasible, outside the most common issues that arise, to predict every eventuality.
The lack of explicit language in CC&Rs typically arises when a homeowner association member has done something that a reasonable member of the association would find unacceptable. While whatever transpired is not specifically addressed in the CC&Rs, a reasonable person would deem the member’s actions or inactions unacceptable. Human nature being what it is, successfully anticipating human behavior or actions is highly improbable.
Fortunately, many issues that arise can be addressed through the Architectural Control provisions of the CC&Rs. This is because of the broad nature of the wording that is typically found in these provisions. For example, wording such as; “no modifications can be made to the exterior of the dwelling until the plans and specifications showing the nature, kind, shape, height, materials and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Association, which approval shall be in the sole discretion of the Association.” This is written in such a way as to give the HOA broad authority that in many ways is easily supportable by its encompassing language.
Other standalone provisions such as storage of garbage receptacles, lawn maintenance, parking, boat trailers, etc., that are typically found in CC&Rs are generally more straightforward to attest because they are specifically addressed. While clear and specific provisions are ideal, what happens when the CC&Rs do not address an issue? How is an unanticipated issue dealt with?
In many instances, when the HOA’s governing documents do not address a topic, the nuisance clause becomes the catchall. The nuisance clause is usually written in such a manner as to be very broad in an attempt to be this catchall. Enforcement issues can arise with the clause because of how the word nuisance is defined. One person’s definition of nuisance may be vastly different than the next person’s definition. A typical clause:
Section 7.2 Nuisance. No obnoxious, offensive or unlawful activity shall be conducted within any Unit, or on or about the Common Elements, nor shall anything be done thereon or therein which may be or which may become an annoyance or nuisance to the other Owners or endanger the health and safety of any Owner. Nothing shall be done or kept in any Unit or in the Common Elements that will result in the termination of, or an increase in the premium for, the policy of property insurance for the Property.
A more detailed example of a nuisance clause:
Section Five. Nuisances. No activity deemed noxious or offensive by the Board of Directors or the Architectural Review and Control Committee (ARC) shall be carried on upon any Lot or within the Common Area of the association. The Board of Directors will have ultimate authority in determining the nuisance and the method of enforcement to obtain compliance of this covenant. Additionally, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood as determined by said Board of Directors or the Architectural Review and Control Committee.
Examples of such offensive activities shall include, but are not limited to:
-The origination or emission of any loud or disturbing noise or vibrations.
-The maintenance, repair, or non-repair of a vehicle. Vehicle for the purpose of this covenant is defined as a self-propelled apparatus on four or more wheels not limited to automobiles, cars, trucks, vans, buses, golfcarts, recreational vehicles (RV), or tractor trailers.
-The maintenance, repair, or non-repair of a motorcycle or motor bike. Motorcycle or motor bike for the purpose of this covenant are defined as a self-propelled apparatus on two or more wheels not limited to motorcycles, mopeds, bicycles, or scooters.
-Maintaining unsightly outdoor storage of personal property or staging of personal property on porches, patios, terraces, yards, lots, or common areas; this is not limited to toys, motorcycles, vehicles, tricycles, bicycles, tarps, wood piles, or other miscellaneous personal items.
-Any unsightly activity not in keeping with the aesthetic characteristics or high level of appearance of the association.
The Architectural Review and Control Committee, with the approval of the Board of Directors, may assist and establish reasonable rules and regulations for enforcing the provisions of this Section Five. The Board of Directors will have ultimate authority in approving these rules and regulations.
These are two actual examples of nuisance clauses found in HOA governing documents of HOAs we manage at William Douglas Property Management. Interestingly, the second example has more detail, and much of this detail is addressed in other sections of that HOA’s governing documents. It is easy to determine the attorney who drafted this second example has experience in HOA litigation. This is because of how specific they were in defining the different nuisances, such as what constitutes a vehicle.
While a nuisance clause may be written to be broad in nature or can provide a great deal of detail, it still may not be written specific enough in certain situations. Hopefully a judge, if the matter elevates to that level, agrees with the enforcement decision of the board of directors. In most situations, a judge will side with the homeowner association board if the issue at hand is being addressed in a reasonable matter. This is especially the case if the board is being reasonable and the member in violation is being unreasonable. If the nuisance clause does not adequately address the situation in question, the HOA’s board of directors may have to resort to going the route of amending the governing documents to help remedy the matter. WDMC
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