As we all know, living in a homeowners association has many benefits. Unfortunately, at times, it may also present some detriments. One of the most glaring is the possibility that a neighbor may do or not do something which ends up being a nuisance to others in the community. When this happens, it is only natural for those affected to feel frustrated and annoyed. That frustration can be further aggravated by a perception that the association isn’t doing anything about the nuisance. This article will explain what a nuisance is and will discuss what can be done to address them.
In Colorado, a nuisance has been defined in the courts as an “unreasonable interference with the use and enjoyment of property.” If you believe that you are experiencing a nuisance, the first and most practical step to take would be to address the issue with the appropriate party. Depending on what the nuisance is, this may involve a call to law enforcement for a noise complaint, a casual conversation with a neighbor about a barking dog, or it may be a formal complaint to the association. Whatever the nuisance and whomever the appropriate party, the best method of initially dealing with a perceived nuisance is courteous correspondence. Remember the old adage - “you get more bees with honey”.
The nature of a nuisance makes it very difficult for even the most level-headed individual to deal with. Keeping this in mind, be sure that you are clearly documenting any incident involving a perceived nuisance. Keeping a written record of the activities which led to and are part of the nuisance will be very helpful if the circumstances escalate to litigation. Although Colorado courts have defined what a nuisance is, a court will need to evaluate the individual facts and circumstances in order to determine if one actually exists.
Many homeowners associations will have language in their governing documents which prohibit activities and actions that may result in a nuisance. Be sure to carefully review your governing documents to determine if they contain any such language. According to the Community Association Law Firm, Altitude Law, if an “association board chooses to categorize second-hand smoke as a nuisance, the association should take the same steps as it would for other types of nuisances such as noise. Case law instructs that the following factors play into whether a given activity qualifies as a nuisance: 1) type of neighborhood; 2) the nature of the wrong complained of; 3) proximity of those alleging injury; 4) frequency/duration; 5) continuity; 6) damage or degree of injury; and 7) number of complaining parties. The board will need to establish a thorough record of the complaints, including dates, times, complaining parties, and witnesses.”
Although disputes between homeowners are considered civil matters, The Colorado Judicial Branch's Office of Dispute Resolution offers affordable access to qualified mediators and has several professionals that specialize in issues related to Common Interest Communities. Assuming the offending party is willing to, engaging in alternative dispute resolution can oftentimes eliminate the need for litigation. Additionally, through partnership with Colorado Legal Services, the Office of Dispute Resolution may be able to offer reduced fees after an eligibility review process is completed. For more information about that process, please visit the Office of Dispute Resolution’s Income Guidelines and Exceptions page.
For more information on mediation, please see the Office of Dispute Resolution, a division of the Colorado Judicial Branch. The Mediation Association of Colorado also offers the public access to experienced mediators.