What is a Nuisance Under Florida Condominium Law?

Posted By on October 21, 2014

Last Update: 02/10/16

Florida condo unit owners are guaranteed the right to enjoy their homes as they see fit under Florida law with one big (make that HUGE) limitation: they cannot use their property in such a way that it injures or impedes the rights of another owner.

Florida condo unit owners can decorate their homes as they see fit. Bright orange walls for a dedicated Florida football fan? No problem. Sleep on the floor because of a bad back? No worries. But do something that crosses the line and interferes with the rights of others in their use and enjoyment of the condo property, and you’ve got a problem. You may be challenged as causing a “nuisance” under Florida condo law. If so, then Florida law can force you to stop or to change your ways.

Florida Law of Nuisance

As judges describe it, the reason for nuisance law is based upon the doctrine of “sic utere tuo ut alienum non laedas,” which means “use your own as not to injure another’s property.” See, Rae v. Flynn.

In Florida law, every unit owner has the legal right to enforce the condominium documents (Bylaws, Condo Rules and Regulations) against all the other condo owners. Hopefully, the condo unit owner does so by first trying to resolve the matter with his neighbor face to face. If this is not successful, then the condo owner’s next step is to formally complain to the Condo Board about the problem he or she considers a nuisance.

The Condo Board will then review his complaint against the condo documents to determine if this situation is a nuisance that is a “matter of common interest” as defined within those documents. If the Condo Board does not see things his way, the unit owner is entitled to proceed against the aggravation directly in Florida courts via a lawsuit filed against the neighbor who is creating the nuisance.

Nuisances result in all sorts of situations. Condo fights have been brought into Florida courtrooms for things like the noise created by an upstairs neighbor walking on their newly installed terrazzo tiles and for the secondhand smoke coming from a neighboring unit.

Common Example of Condo Nuisance: Barking Dogs

A common example of a nuisance case involving unit owners is a condo owner with pet dogs. Dog owners whose beloved pets disturb other unit owners because they bark too much or because they give off offensive odors (think dog poop left in the common areas, for instance) can face charges that they are creating a nuisance.

Florida courts have held that dogs who bark too much can form the basis of injunctive relief, where the nuisance barking must be stopped (as, for example, having the unit owner keep his dogs inside his condo.) The burden of proof here is to show that the plaintiffs are “… substantially and unreasonably disturbed notwithstanding proof that others living in the vicinity are not annoyed.”

Proving Nuisance Isn’t Easy

Given that condo nuisance is defined within the individual condominium’s controlling documents, and that each nuisance is unique and there is no established legal standard for defining “nuisance,” proving an individual nuisance case can be challenging. Even the unit owner can sometimes be argued to be a “nuisance.” Consider the case of Florida condo owner Nancy Wear.

Florida condo unit owner Wear won over $200,000 in a condo nuisance jury verdict over her demand that a trash can be placed by the condo mailboxes, so she could immediately toss all the junk mail she received there, rather than having to cart it to her condo to throw it away. Her request was denied, so Mrs. Wear began dumping her junk mail on the floor there by the mail boxes in protest.

This got lots of attention, of course. Result? The Condo Board considered Mrs. Wear’s actions to be a “nuisance” and took steps to evict her from her condo.

It took Nancy Wear eight years to win her fight in a vexing lawsuit that went up to the Florida appellate courts more than once before her ultimate victory against the Alca Condominium Association.

Mrs. Wear used the jury award to pay off that condo mortgage. (Important note: the fact that Nancy Wear was an accomplished attorney obviously served her well.) While we’re not sure, we’re betting that Nancy Wear got that trash can.

Conclusion

There is no set formula for deciding when something is a “nuisance” for a condo owner. Each case is unique and will be decided by the judge and jury on a case by case basis. It’s important to evaluate your case with a Florida condo lawyer for its strengths and weaknesses, recognizing that whether a nuisance exists or not is a question of degree, and different people (i.e. a judge or jury) may see the issue differently than you do.

A good piece of advice is to at least speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 

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Comments

15 Responses to “What is a Nuisance Under Florida Condominium Law?”

  1. Nancy says:

    We have a specific time to do noisy construction in our Condo rules and regulations, does the association have to abide by the rules or can they schedule noisy construction outside of the rules and regulations?

  2. Hi Nancy
    Need more info plus we cannot answer personal queries in blog post comments, so ask that you give our office a call (see the toll free number above?) for a chat.

    Thanks,
    Larry

  3. mark alan says:

    Hello,I’m confused because I found this article regarding nuisance law on your site but after waiting a week and with three follow up calls I was told your firm doesn’t handle these claimms. Any explaination would be appreciated.

  4. Hi Mark,
    Sorry for the frustration. I don’t recall receiving a call from you, and I’m thinking what may have happened is that when you called, perhaps there was some confusion as we only handle nuisance matters in South Florida …. ?
    Best,
    Larry

  5. Mason Storm says:

    Hi I’m having a problem with my neighbor above me and I need to do something about them and I’m in a condo unit …

  6. Sorry if this is frustrating! However, we’re not allowed to answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat. (We edited your long comment to protect your privacy.)
    Thanks,
    Larry

  7. John Barnett says:

    Does a condo owner, owning 50% of a condo [tenants in common], have the right to sell his vested interest without the condo association/board approval?

  8. Sorry if this is frustrating! However, we’re not allowed to answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat.
    Thanks,
    Larry

  9. gerry says:

    I live in a condo and my neighbor who moved in in January plays his music so loud I can hear it in my unit as if I was playing the music he says he has the right to play his music and tv anyway he wants between the hours of 8:00 am and 11:00 pm and I must have sensitive ears, I have lived here for 8 years and have never had any issues prior to this what can I do about this

  10. Sorry if this is frustrating! However, we’re not allowed to answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat about your situation.
    Thanks,
    Larry

  11. Lisa says:

    Can the management company also be the fining committee?

  12. Sorry if this is frustrating! However, we’re not allowed to answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat about your situation.
    Thanks,
    Larry

  13. Ray says:

    Case Description:
    Talked with a tile installer who tapped all the tiles one by one hearing a hollow sound. “They’re all bad”.
    The flooring above me was replaced by the seller (September 2013) with tile installation not to code. The 1st Management company who was voted out (Feb 2015) sent certified violation letters to the owner-resident for the replacement of the flooring, keep in mind the current owner-resident did not do the installation. I hear all sounds 24/7 going on four years, when anyone walks/runs/moves furniture in the unit above me.
    I employed a law firm with borrowed funds in order to resolve the flooring nuisance, only to be asked for another $4k to go into litigation.

  14. irene says:

    we have a 25 lb rule. We have one resident who has consistently violated this rule by replacing a pet that dies with another one.
    I came to this complex because of the rule. Past presidents ….h

  15. Sorry if this is frustrating! However, we’re not allowed to answer personal queries in blog post comments, or to contact you directly, so we ask that you give our office a call for a chat about your situation.
    Thanks,
    Larry

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