Nuisance Provisions and the Enforcement of Covenants
June 6, 2014
Many CCRs and Master Deeds contain nuisance provisions. These seemingly innocuous provisions usually provide that: no unlawful noxious or offensive activities shall be carried on in any Lot or Unit, nor shall anything be done therein or thereon which shall constitute a nuisance or, in the judgment of the Board of Directors, unreasonably disturb others. Similar provisions also require Lot and Unit Owners to maintain their property in good condition and in good order and repair. Often in advising associations, I refer Boards to the nuisance provisions, noting that if an issue is so concerning then perhaps it is a nuisance and should be enforced as such. Many Boards wonder whether this provision has any teeth. A case I often discuss out of Nashville shows that it does.
The Tennessee Court of Appeals addressed the enforcement of a nuisance provision in 4215 Harding Road Homeowners Association v. Harris, 354 S.W. 3d 296 (Tenn. Ct. App. 2011). Harris dealt with a hoarder. The Court does an excellent job of relating the facts of the case. Briefly, however, Harris owned a Unit in the development since 1979. She apparently was a hoarder. In the summer of 2008, occupants of the condominium development began to complain about smells in the condominium. The management for the development, in an effort to deal with the issue, began a deep-cleaning of the common areas that did not address the issue. On August 26, 2008, Harris complained about a leak in her Unit. The management, in responding to the leak, immediately noticed “a very offensive and overpowering odor inside the Unit…compared to the smell of rotting meat.” In addition, management observed extremely unsanitary living conditions in the Unit. Over the next several months, the Association attempted to address this issue, including bringing in specialized contractors to assist Harris in cleaning the Unit. By the end of October 2008, the Unit was apparently clean. Unfortunately, matters did not end there. By late February 2009, the Association’s management company again received complaints about smells coming through the condominium’s HVAC stack. Another service call to Harris’ Unit revealed that the Unit had again fallen into disrepair and become unsanitary. On March 24, 2009, the Association held a forum on the matter and contracted with another company to inspect Harris’ Unit. Harris refused the inspection. On April 8, 2009, the Board sent a notice to Harris that she was in violation of the Master Deed and Bylaws. On August 31, 2009, the Association filed suit to enforce the Master Deed and Bylaws. In addition to enforcing the covenants, the Association sought the judicial sale of Harris’ Unit.
Ultimately, the Association was successful. Harris’ Unit was judicially sold. The proceeds of the sale were applied to the Association’s attorney’s fees.
The Court did not see this as a typical nuisance action. Rather, the Court noted that the enforcement of the Master Deed was a contract matter with nuisance elements. Simply put, Harris was violating a nuisance provision in the Master Deed. Thus, the behavior amounted to a breach of contract. The Master Deed provided the Association a remedy for such a breach of contract. In this instance, the Association was authorized to enter the Unit and remove the nuisance. In addition, the Association was authorized to sell the Unit to compensate itself for its legal costs. Thus, the nuisance triggered the other contractual provisions of the Master Deed.
Interestingly, this was not the end (nor the beginning of litigation between this Association and Harris). Harris was subsequently prohibited from purchasing another Unit in the development, see 4215 Harding Road Homeowners Association v. Harris, 2012 WL 6561040 (December 14, 2012). A previous case will be separately discussed.
What does this mean for Associations? Put simply, declarations and master deeds have real teeth. Admittedly, this was an extreme case. That being said, the Court did not hesitate to enforce the covenants contained in Master Deed. The covenants are there to protect the Association and the other Owners. The Board should be aware of them and should ensure that they are reasonably enforced.
Tags: association, board of directors, bylaws, CCRs, condominium, condominium association, Declaration of Covenants Conditions and Restrictions, HOA, homeowner, homeowner association, homeowners, homeowners association, Horizontal Property Act, laws, Master Deed, non-profit corporation, nuisance, protective covenants, Tennessee, Tennessee Condominium Act, tn, unit