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"DOCUMENTING THE NUISANCE SO YOU CAN PROVE THE NUISANCE"

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By: Andrew Cuevas, Esq.

e-mail: acuevas@cuevaslaw.com

Tel: (305) 461-9500

Fax: (305) 448-7300

One of the more frustrating aspects of association living, aside from the issue of certain people who do not pay their maintenance benefiting at the expense of others, is the issue of nuisance and the interference of enjoyment of your property. With a nuisance the Association does not necessarily have the right to remove an owner from their unit (though in some circumstances it can be done with a tenant). However, the Association can seek to impose a fine and, more importantly, pursue arbitration or a court action to obtain an order requiring the noncompliant party to stop their improper activities (as well as recover fees and costs for seeking such remedy).

It is important to realize that the first line of offense is with the Board and the Property Manager in being able to document and prove the nuisance. Recently the Arbitration section of the Division of Florida Condominium, Timeshares and Mobile Homes (the "Division") issued a series of decisions which should concern most Associations before proceeding with a claim of nuisance against a unit owner or a tenant. The case of Jade Residences at Brickell Bay Condo Association v. ACK Investment Group (January 12, 2009), was regarding an alleged drunken brawl in the association's Jacuzzi involving tenants of a unit owner. The petition filed by the Association against the Unit Owner was dismissed as the Arbitrator found that a single instance of misconduct does not crate an ongoing nuisance. Likewise, in the matter of King David of Sunny Isles v. Morinsky, (December 11, 2009), it was found that a single incident of yelling at board members does not, as a matter of law, constitute a nuisance.

More disturbing is the case of Stratford Towers v. Allegro (August 4, 2010), which places a high burden on the Association to prove their nuisance case against a unit owner or their guests. The petition filed by the Association alleged that the owner had a habit of allowing strangers and vagrants to stay as his guests resulting in the intervention of law enforcement, alleged that guests of the owner broke a security door on June 12 to gain entrance to the condominium building, and further alleged that on the same date two guests were swimming in the pool naked and engaging in inappropriate sexual conduct. Unfortunately for the Association, the Arbitrator required that the Association amend its petition to include the dates, times and nature of each incident resulting in law enforcement intervention as well as proof that the pre-arbitration notice was given to the respondent "about each incident specified". Additionally, the Arbitrator held that the pool incident did not allege facts which would rise to the level of nuisance, which would normally require activities that disturbs one in the free use, possession and enjoyment of their property.

Finally, with regard to the incident of engaging in inappropriate sexual conduct in the pool, the Arbitrator in Stratford Towers held that no similar incident occurred after the pre-arbitration demand notice was given as to this issue, and that therefore the Association could not claim a nuisance as to this issue. It seems like the moral of the ruling in Stratford is that the Arbitrator and the Division will allow each unit owner one shot at having some fun outside under the stars, but only one shot. I am sure most Associations would hope that this is not the case.

In conclusion, it is important for the Association to document its cases, not just with a general summary of incidents but instead with specifics as to the incident, the date, and time. Furthermore, and more importantly, any pre-arbitration notice needs to be as specific as possible.

Mr. Andrew Cuevas, Esq., is the President of Cuevas, Garcia & Torres, P.A., and oversees its Community Association Division of the firm. If you have any questions regarding this article or any other questions, you can contact Mr. Cuevas at (305) 461-9500 or at acuevas@cuevaslaw.com.

The Law Office of Cuevas, Garcia & Torres, P.A. is providing this newsletter as a brief summary of certain aspects of community association law. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this news letter does not create any attorney-client relationship between the reader and Cuevas, Garcia & Torres, P.A. The hiring of an attorney is a decision that should not be based solely on advertisements or this newsletter. Before you decide, ask us to send you free written information about our qualifications and experience.

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