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.
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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