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  • Writer's picturePorter DeVries

Resolve Potential Nuisance Disputes By Clearly Drafting Your Association's Governing Documents

One of the fundamental tenets of property rights is that an owner may use their property in any reasonable way they please. For condominium and homeowners’ associations, there are two limitations to that general rule. First, unit owners in Hawaii must conform with the governing documents of the association (Declaration, ByLaws, House Rules, etc.). Second, unit owners cannot use their property to impact, injure, impede, or interfere with other unit owners’ rights: sic utere tuo ut alienum non laedas, “use your own as not to injure another’s property.” See City Mill Co. v. Honolulu Sewer & Water Comm’n, 30 Haw. 912 (Haw. 1929); see also Territory v. Gay, 31 Haw. 376 (Haw. 1930); see also Casil v. Murata, 31 Haw. 123 (Haw. 1929).

This article discusses how – for shared ownership communities – these two exceptions can, and should, be harmonized by clearly and specifically defining what constitutes a nuisance activity in the association’s governing documents.

A nuisance is any activity that “unlawfully annoys or does damage to another, anything that works hurt, inconvenience, or damage; anything which annoys or disturbs one in the free use, possession, or enjoyment of his property or which renders its ordinary use or physical occupation uncomfortable; and anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights.” Marsland v. Pang, 701 P.2d 175, 180 (Haw. Ct. App. 1985). In an association setting or other shared ownership community, the specter of nuisance activities can rear their heads in many forms: loud music or televisions, unruly pets or children, second-hand smoke and noxious odors, short-term rentals, uncared-for windows and siding, and a litany of other examples that pop up from time to time.

Under Hawaii law, every unit owner has the right to enforce condominium or homeowners’ association documents. See HRS § 514B-161 to 162 (regarding condominiums); HRS § 421J-13 (pertaining to homeowners’ associations). Given the proximity of the living situation in shared ownership communities, unit owners often attempt to resolve the nuisance dispute first by directly contacting the offending unit owner. If this proves unsuccessful, then the unit owner may file a written complaint to the Board of Directors of the association about the nuisance and how it is affecting their unit, pursuant to the guidelines set forth in the governing documents. Upon receipt of this complaint, the Board of Directors will look to the governing documents to determine if the complained-about activity is a nuisance, and if so, what enforcement remedies are available to them. Mediation and arbitration are permissible mechanisms to resolve the nuisance dispute. And, if all these methods fail, then the aggrieved unit owner can file a lawsuit against the offending unit owner.

Yet, all this can be avoided. One of the many perks of living in a condominium or homeowners association is that the governing documents spell out the procedures and policies for the community; and these rules apply to all unit owners.

An association’s governing documents can, and should, spell out and specifically enumerate what constitutes prohibited nuisance activity. Covenants, Codes, and Restrictions, as well as House Rules can be, and should be, updated and amended to provide for such a definition. Not only will this put all unit owners on notice of what constitutes a “nuisance” (thereby dissuading meritless complaints), it also will help the Board of Directors, so that when a complaint of nuisance is brought to the Board’s attention, the governing documents are clear and unambiguous as to whether the claim is valid. This leads to efficient identification of problems, fair enforcement, and resolution of unit owners’ potential disputes.

Every condominium and homeowners’ association has certain goals for their respective communities. By drafting clear and concise governing documents, our firm helps these organizations achieve those objectives and work toward a harmonious living environment.

Call today for a free consultation: 808-465-2500.

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