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Legal action can be brought against obnoxious individuals
by: Rob Samouce
Many are aware of those owners (or was it those tenants or those guests) who bring glass beer bottles and tequila shots to the pool, fire up the smokes and cigars, crank up the stereo and then once they get sufficiently inebriated well into the night curse and trash mouth whomever is within shouting distance.

Any other people around, in order to avoid confrontation and possibly bodily harm, usually flee the pool common areas. Those who do confront the bad behaving folks usually regret that they did. Soon, the members of the board of directors and/or the manager will get an earful from the offended owners demanding that something be done.

This is just one example of bad neighbor behavior really affecting others in the community.

For some reason, many directors believe there is not much that can be done in these type situations because they can find no particular rule or regulation listed in the governing documents that appear to have been violated.

First of all, if the conduct of the offenders is way out of hand, anyone can immediately call the police or sheriff’s office, who will usually readily and willingly respond to calls about breach of the peace and public nuisance. There is no need for the people around the obnoxious activity to have to wait until the next day to ask the association representatives to act. Call the police or sheriff’s office regular office phone number while the activity is going on (do not call 911 unless it is a real emergency).

Next, just about all condominium and homeowners’ associations governing documents contain “nuisance” provisions, or should contain such provisions, that basically say, in one form or another, something like:

“No owner shall use his unit or the common areas or permit his unit or the common areas to be used, in any manner which constitutes or causes an unreasonable amount of annoyance or nuisance to the occupant of another unit, or which would not be consistent with the maintenance of the highest standards for a first class residential community, nor permit the premises to be used in a disorderly or unlawful way. The use of each unit and the common areas shall be consistent with existing laws and the condominium documents, and the occupants shall at all times conduct themselves in a peaceful and orderly manner.”

With this kind of nuisance provision in the governing documents, an association can bring legal action against the persons acting rude and obnoxious as such behavior is in violation of the provision. Such legal action could be a claim for damages and for a mandatory injunction that, if granted, could either prevent the violators from using the pool in the future or prevent the owner from renting his unit or have guests to avoid similar impermissible activity in the future. Most governing documents provide that the unit owner is legally responsible for all violations of his guests and tenants.

If the association must result to filing a lawsuit against the violator in order to obtain compliance, governing documents should also provide that the association is entitled to recover prevailing party costs and attorney’s fees awarded by the court.

With such provisions, it can get very costly for a violator to not come into compliance with the rules and regulations because if litigation becomes necessary the rude and obnoxious person or persons can end up responsible for the association’s prevailing attorney’s fees in addition to their own. That little pool party can end up costing them many thousands of dollars.

Finally, if a court ordered mandatory injunction is obtained against the violators and they violate again after the court order, they will be in contempt of court and would then face sanctions by the court which could include fines and even imprisonment.

There is no reason for association members to have to put up with neighbors or guest or tenants of neighbors acting rude and obnoxious. Condo and HOA associations cannot, of course, legally discriminate against people based on sex, age, race or religion but they sure can discriminate against people acting bad and they should on behalf of all the other owners.
Rob Samouce, a principal attorney in the Naples law firm of Samouce, Murrell, & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners' associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.