The DBPR, ROCs, and "Nuisances"
Now that the annual migration of the "snowbirds" to our resident owned communities is well under way, so are the number of complaints we receive each week about "nuisances". Whether it's the dog that barks at all hours of the day and night, the next door neighbor who plays his stereo loudly, or the "shady" character across the street who insists on hosting "wild" parties with the "wrong" crowd every night, I can assure you that every ROC has at one time or another dealt with behavior that at least some of its residents believe is a "nuisance."
There have been some recent decisions from the arbitrators at the Department of Business and Professional Regulation's Division of Condominiums, Timeshares, and Mobile Homes on the subject.
Here's a summary of some of those decisions:
- A Summary Final Order by an arbitrator in November of 2008 provides that proof of a "nuisance" requires evidence of repeated behavior which interferes with a protected legal right in a substantial, appreciable, and tangible way. Nuisance is not established by evidence limited to two isolated incidents of subjective reactions to the operation of a Segway on the community's common elements.
- Last December, an arbitrator found that a single incident of yelling at board members did not, as a matter of law, constitute a "nuisance".
- No "nuisance" was found in a January, 2009 decision that involved an allegation of a single instance of a drunken brawl in the ROC's jacuzzi involving tenants of the unit owner.
- In August of 2009, an arbitrator determined an arbitration petition that only alleged a single incidence of yelling and drunkenness was not sufficient to establish a "nuisance."
- However, an arbitrator's order entered in September of 2009 found that where a unit owner was alleged to have removed extensive portions of the common element drywall in his condominium unit, which made it much easier for cigarette smoke to pass from his unit into adjoining units, that unit owner was ordered to restore all of the drywall in his unit and to cease smoking in the unit until the required drywall was restored.
- Finally, an arbitrator's decision in January of 2009 required a unit owner to remove pit bulls exceeding 20 pounds from her unit. The ROC's declaration of condominium permitted pets weighing less than 20 pounds and prohibited nuisances or practices that were a source of annoyance to the residents or interfered with other unit owners' peaceful possession of their units. One of the pit bulls had already bitten a resident and the unit owner had demonstrated that she would continue to flout the requirements of the declaration without an order from the arbitrator requiring compliance.
Thanks to my colleague, Karl Scheuerman, for compiling a very comprehensive summary of the DBPR'S arbitration decisions.
Paradise Bay and Imperial Bonita Estates did a fine job of hosting last week's seminars and we're looking forward to this week's seminars at Village at Riverwalk in North Port and Hammock Estates in Sebring.
