“SHELTER IN PLACE” ORDERS AND THE HANDLING OF NUISANCE COMPLAINTS DURING A PANDEMIC

By: Mark B. Davis, Esq.

I hope this writing finds everyone healthy and in good spirits.

My intent is to address some of the specific issues that might develop for community associations from the “shelter in place” orders.  Being locked in (or “locked up”, as some may feel) with folks who are starting to get on our nerves can be hard. Since many condominium owners live in multi-family buildings, such close quarters may quickly seem overwhelming.

The “shelter in place” order is likely to magnify already-existing issues, especially with school age children being home for the rest of the school year. The natural result will be an inevitable increased level of activity in and around everyone’s home and condominium unit.

If someone is doing anything that is dangerous, clearly illegal (more on that later) or an extreme annoyance (think garage band practice all night long), then Boards should call whoever is necessary (the police) to make sure that those behaviors are stopped ASAP. This has not changed due to the pandemic.  What I want to discuss in relation to COVID-19 is what the Board can do to address certain items that are normally a mild frustration but may be turning into a major aggravation under “Shelter in Place” because everyone has a limited ability to get out of the house.

Complaints about excessive noise, pets, smoking, cooking odors, marijuana smoke and any number of other items can cause controversy between neighbors. I would urge Board members and Co-owners that the first step should always be to talk to your neighbor and see if the problem can be resolved without the intervention of a third party. If that does not work, then it may be possible for the Property Manager or Board Member to intervene and help craft a solution between neighbors that resolves any friction.

Keep in mind that the avenues Associations have for resolving owner disputes might not be enough to directly address an issue where one co-owner is somehow offending another.  For example, in a recent case, Davis v. Echo Valley (a case that originated right here in Michigan), one co-owner sued her neighbors, her Association,  the management company, and others because smoking in one nearby unit was travelling into her unit causing issues and complications with her alleged already-existing medical conditions.  Ms. Davis brought suit alleging that the Association denied her request for a reasonable accommodation in violation of the Federal Fair Housing Act and the provisions of the Bylaws that prohibited offensive conduct (most Bylaws have similar anti-nuisance provisions).  The matter was ultimately dismissed on summary judgment by the U.S. District Court, and that dismissal was later confirmed by the Sixth Circuit Court of Appeals.

In its opinion, the District Court stated (referring to cigarette smoking but with reasoning generally applicable to all smoking) that smoking is “- but one of the annoyances one must endure in a multiple dwelling building.”  The reality of the matter is that living in close quarters in the condominium setting inherently requires a certain tolerance for acts which are outside of one’s control and which might not necessarily be present in a single-family dwelling. Regardless of what sort home you have, no one is assured “annoyance free” living. As with most things in life, there is a trade-off of sorts between not having to mow your lawn and dealing with other people’s sometimes perturbing habits. Some of these nuisance items can be addressed by one’s Association, while some likely cannot absent very extraordinary circumstances (i.e., very egregious nuisances).

In addition to creating a high threshold for being able to sue under such provisions, the Davis Court also determined that proof of any such intrusions or annoyance must be proven through scientific evidence.  For example, smoking infiltration would need to be collected and measured, sound intrusions would have to be recorded and charted, etc.  That type of rigorous approach, if applied by all Courts in condominium nuisance disputes would make such cases much more expensive, and would require a substantial monetary investment by the complainant before the matter could even make it to Court.

In the Davis case, the parties expended a huge amount of resources from both sides only to find out that, absent some extraordinary circumstance, that simply smoking inside one’s own unit did not violate the law, and the association could not be held responsible for failing to prohibit such smoking via a bylaw amendment.  The confusion over these types of problems has also been compounded by Michigan’s recent ballot initiative legalizing recreation marijuana. Indeed, in a recent Detroit Free Press article, police have stated there is little that that can be done legally on account of marijuana smell emanating from a neighboring dwelling. It is likely that your Association will not have any better luck using the police to enforce prohibitions against marijuana smoking in your community (again, absent some highly unusual circumstances).

In conclusion, I offer two specific pieces of advice to Board and condominium unit owners on these issues.  First, if you have a nuisance issue, see if the parties can simply work it out between themselves. Inquire whether the nuisance is really the result of unusual or egregious nuisance activity, or whether it is just a product of people living in close quarters under the COVID-19 lockdown.

Second, assess whether there may be a specific solution that can be crafted by your Association to ease some of the friction between the neighbors or feuding parties, such as amending the Association’s bylaws or any applicable rules, policies or regulations. For example, if the issue is smoking (be it marijuana or otherwise), it is possible for an association to amend its condominium documents to prohibit smoking on the entire condominium premises, just like in any public building.

Thirdly, for any issues that involve medical or disability questions, the Board should always consult with experienced legal counsel, as civil rights laws (e.g. Fair Housing laws) may apply to the Board’s decisions on such matter. Our attorneys are here to assist community associations and their board and managers with resolving these and other types of disputes when they arise.

During these trying times, it is more important than ever for boards and community members to work together rather than against each other in resolving owner-on-owner disputes and complaints.  With that noble idea in mind, I leave you with a quote from the late Rodney King, who perhaps said it best: “Can’t we all just get along?”

 

Attorney Mark B. DavisMark B. Davis is a senior associate attorney and has been with the Firm since 2007.  Mr. Davis brings quite a diverse background of experience to the Firm.  He served in the U.S. Army from 1983 to 1987 and achieved the rank of sergeant in the Rapid Deployment Force.  After leaving the U. S. Army, Mr. Davis attended Eastern Michigan University, where he graduated with a degree in Public Law and Government.  He then attended Wayne State University Law School and obtained his Juris Doctor degree in 1997.

After graduating law school, Mr. Davis practiced law in Dearborn, Bay City, and Florida before landing in Plymouth with the Firm.  He has extensive experience in real estate, litigation and appellate matters (including federal litigation and circuit court appeals).  He also has significant experience in assisting condominium associations with lending transactions.

Mr. Davis has extensive experience in the emerging field of marijuana law and the impact that both recreational and medical marijuana can have on condominiums.  He is a member of the Marijuana Law Section of the State Bar of Michigan and frequently conducts seminars for community association organizations (such as UCOM) as well as for the ZDF Condo & HOA B.E.A.T. Program on the subject.

Mr. Davis appears in court regularly and enjoys engaging in vigorous debates with judges and opposing attorneys.  He is admitted to practice in all state courts in Michigan and Florida, the U.S. District Courts for the Eastern and Western District of Michigan and the Middle District of Florida, the U.S. Court of Appeals for the Sixth Circuit, and the U.S. Supreme Court.

Mr. Davis has many interests outside of legal practice.  He spends most of his free time with his wife, three children, and the family dog.  He is an avid follower of the Lions and Tigers, and also enjoys working on home improvement projects, wood working, and reading.

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