Get 2 months of free community web site hosting from Community123.com!
Sunday, April 22, 2018
Get 2 months of free community web site hosting from Community123.com!


SBCA: Free education for HOAs and condos on satellite placement issues.
(National Trade Organization)
Helping HOAs, condos and property managers with satellite placement issues since 1986.
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Nuisance
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
GlenM4
(Tennessee)

Posts:35


04/09/2018 6:50 AM  
How do you take this information.

"Nuisance. No noxious or offensive trade or activity shall be carried on upon any lot nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood."

This is in our CRs and not sure how to uphold this? for example we have a guy that likes to smoke meat. His neighbors (two of them) complain this is a nuisance to them. (the smoke) At same time I can see a lot of things being a nuisance to a lot of people. How would you handle this rule in the CRs?

SheliaH
(Indiana)

Posts:2143


04/09/2018 7:48 AM  
This is a broad statement, and as you've guessed, lots of things can become a nuisance to lots of people. I don't think there's a one size fits all approach to this - you have to look at the specific situation.

Generally, I want to know: what is the problem, how long has it been going on, how many people have complained, did anyone speak to the owner about the nuisance and if so, what was the response? In our community, the primary issue concerns the number of people affected and/or if the common area is being affected - the more complaints we receive, the more likely the HOA would step in. If the common area's being affected, you probably need to step in sooner rather than later.

Until then, adults should be mature enough to TALK (not scream or threaten) to each other about what's bugging them. Sometimes, people don't realize their behavior is causing problems and fix it as soon as someone lets them know. Others want someone else to do the dirty work, but the Board can't jump into every single situation.

If it gets to the point where more firepower is needed, that's when you need a good rules enforcement policy where you have "friendly reminders/notices" up to the "fix this right now or we go to the attorney" letters. The board could put together some policies listing the criteria under which it will get involved and distribute that to the homeowners, along with suggestions on how they can handle problems on their own. People need to understand that they have to try and make an effort themselves before the board gets involved - and that the board cannot get involved in everything. You'll also need a fining schedule (if your state allows this) and an appeals procedure.

In this case, I'd ask these questions of the complainers and then go with them to the area and see for myself what's going on. For example, is this man's smoker creating billows of smoke that stinks up the area or causes visibility issues for walkers and drivers? Do the neighbors have health issues that flare up when the hickory or pecan wood chips start doing their thing? If so, talk to the man and have him stand where you're standing - sometimes people need to see for themselves what this looks, smells and sounds like, and from there, some sort of resolution could be reached. Perhaps the guy needs to move the smoker to another area or perhaps get a different kind of smoker that's less stinky, reducing the smoking to once a week as opposed to every day and try to do it on a day when the wind's not blowing as hard.


MelissaP1
(Alabama)

Posts:7170


04/09/2018 3:27 PM  
It is a nuisance once someone identifies it as one. Now you may want to define that in your documentation. Like the board has to decide it is a nuisance before it takes actions. If the board determines it's not one, then one has to go to the police.

Former HOA President
BenA2
(Texas)

Posts:283


04/09/2018 8:58 PM  
It essentially says that you can't do anything that may annoy your neighbors now or in the future. It is so vague that you should only enforce the most flagrant cases, and then only after consulting an attorney. In some states, courts must rule in favor of the land owner if the CC&Rs are ambiguous.
DouglasM6
(Arizona)

Posts:680


04/10/2018 10:47 AM  
Posted By GlenM4 on 04/09/2018 6:50 AM
How do you take this information.

"Nuisance. No noxious or offensive trade or activity shall be carried on upon any lot nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood."

This is in our CRs and not sure how to uphold this? for example we have a guy that likes to smoke meat. His neighbors (two of them) complain this is a nuisance to them. (the smoke) At same time I can see a lot of things being a nuisance to a lot of people. How would you handle this rule in the CRs?






Good luck trying to stop someone from feeding their family!! Smoke from a smoker smells good. It's not noxious or offensive.
GenoS
(Florida)

Posts:1972


04/10/2018 1:55 PM  
Posted By DouglasM6 on 04/10/2018 10:47 AM
Good luck trying to stop someone from feeding their family!! Smoke from a smoker smells good. It's not noxious or offensive.

Feeding his family? Is he smoking meat and selling it as a business? Once in a while isn't bad but if it's happening 4 or 5 times a week then I'd say it is both noxious and offensive.
TimB4
(Virginia)

Posts:15577


04/10/2018 3:24 PM  
Glen,

Our Association has a strict policy of not being involved with neighbor v neighbor issues.
The only time the Association might become involved is if we receive two or more neighbors complaining.

As others have said, that statement is broad. It's broad for a reason - to allow latitude. However, what is considered noxious or offensive is subjective. Therefore, it can become a hassle if the Association decides to use that clause without a lot of support.


The question was: How would we handle?

1) We have the published policy above. If you do not have such a policy, I strongly suggest you get one.

2) If we only received on complaint, we would tell that individual that this is a neighbor v neighbor issue and they have to resolve it themselves.

3) If we got more then one lot complaining, we would likely go over and talk to the neighbor to see what can be done (limiting hours, etc.).

4) If push came to shove, we would suggest mediation between the parties involved. Note: the Association would not be the mediator.
TimB4
(Virginia)

Posts:15577


04/10/2018 3:27 PM  
I forgot to add:

Unless there is language within the CC&Rs to allow for monetary penalties, to resolve the issue would have to go to court. An Association that takes such an issue through the courts would likely anger the courts as this is all subjective and without clear policies the issue can be difficult to win.


DouglasM6
(Arizona)

Posts:680


04/10/2018 5:25 PM  
Posted By GenoS on 04/10/2018 1:55 PM
Posted By DouglasM6 on 04/10/2018 10:47 AM
Good luck trying to stop someone from feeding their family!! Smoke from a smoker smells good. It's not noxious or offensive.

Feeding his family? Is he smoking meat and selling it as a business? Once in a while isn't bad but if it's happening 4 or 5 times a week then I'd say it is both noxious and offensive.




So, people are not allowed to smoke meat for every dinner of the week? If they are selling it, that s a different thing all together. If it's for the personal enjoyment, as I said earlier, good luck enforcing it.
DouglasM6
(Arizona)

Posts:680


04/10/2018 5:28 PM  
Posted By TimB4 on 04/10/2018 3:27 PM
I forgot to add:

Unless there is language within the CC&Rs to allow for monetary penalties, to resolve the issue would have to go to court. An Association that takes such an issue through the courts would likely anger the courts as this is all subjective and without clear policies the issue can be difficult to win.






Thank you! I always try to picture what a judge would say. I can just picture someone standing in front of the judge saying, " but they smoke their the meals every night!". The judge is going to wish he was a friend and/or neighbor of this family fo' sho'!
BenA2
(Texas)

Posts:283


04/10/2018 5:58 PM  
Posted By GenoS on 04/10/2018 1:55 PM
Posted By DouglasM6 on 04/10/2018 10:47 AM
Good luck trying to stop someone from feeding their family!! Smoke from a smoker smells good. It's not noxious or offensive.

Feeding his family? Is he smoking meat and selling it as a business? Once in a while isn't bad but if it's happening 4 or 5 times a week then I'd say it is both noxious and offensive.



Unless the CC&Rs are very specific I'm not sure how you could say once a week is okay but four times a week is noxious and offensive. I understand your point but it sounds arbitrary to me.
LetA
(Nevada)

Posts:409


04/10/2018 9:35 PM  
How is it in Tennessee that someone finds BBQ smokers in the backyard noxious and offensive??
GenoS
(Florida)

Posts:1972


04/11/2018 2:46 AM  
Asthma, allergies, just doesn't like the smell of the smoke, vegetarian or vegan, drives the dog crazy, attracts pests or troublesome wildlife, religious grounds, a smokey film deposited on surfaces over time due to prolonged and repeated exposure.... multiple reasons people might object to it.

Personally I love smoked meat and fish but I can understand how some people wouldn't want their senses assaulted by the smells on a daily basis. If I'm on my patio enjoying a salad for lunch and the smell of a smoker is wafting through the air then I could make the argument that it's interfering with the quiet enjoyment of my property. "Quiet enjoyment" meaning the right to undisturbed use and enjoyment of real property. One of the reasons people don't like dog poop is because they don't like the smell. Not that anyone would equate dog poop to cooking food but the sense of smell is subjective by nature.
DouglasM6
(Arizona)

Posts:680


04/11/2018 6:42 AM  
Posted By GenoS on 04/11/2018 2:46 AM
Asthma, allergies, just doesn't like the smell of the smoke, vegetarian or vegan, drives the dog crazy, attracts pests or troublesome wildlife, religious grounds, a smokey film deposited on surfaces over time due to prolonged and repeated exposure.... multiple reasons people might object to it.

Personally I love smoked meat and fish but I can understand how some people wouldn't want their senses assaulted by the smells on a daily basis. If I'm on my patio enjoying a salad for lunch and the smell of a smoker is wafting through the air then I could make the argument that it's interfering with the quiet enjoyment of my property. "Quiet enjoyment" meaning the right to undisturbed use and enjoyment of real property. One of the reasons people don't like dog poop is because they don't like the smell. Not that anyone would equate dog poop to cooking food but the sense of smell is subjective by nature.





That's the first time in my life I've seen smoked food compared to dog poop. Nice!

It's a stretch, a very long stretch. Complaining about someone smoking food will do nothing more than cause yourself problems.

Solution- Go eat your damn salad inside!! LOL.
GlenM4
(Tennessee)

Posts:35


04/11/2018 9:40 AM  
the complaint has been about, 3 neighbors. he cooks on it about 3-4 times a week. One neighbor has allegories so she has to keep her windows closed due to the smoke. Also this is not a small smoker.. its huge. runs a long time when running. unlike a grill.
AugustinD


Posts:792


04/11/2018 10:05 AM  
The only thing black-and-white I can say about the situation is that I think this extensive cooking smoke is a lot like secondhand cigarette smoke. The latter is getting a lot of attention in general condominium news. In this day and age, many see secondhand cigarette smoke as such a huge nuisance, and such a risk to health, that they argue it is a nuisance. Some condos are banning smoking altogether, ready to take on legal challenges. It seems like the anti-smoking crowd is seeing more and more success. I think it is a big deal. I think smokers should not be allowed to trespass on my air space and inflict health risks onto me.

If I were on GlenM4's HOA Board, I would vote this situation to be a violation of the rules but be ready to do battle.
TimB4
(Virginia)

Posts:15577


04/11/2018 1:46 PM  
Glen,

Based on the additional info, I agree that this is a nuisance.

Try and work with the individual and have them mitigate the smoke. However, I found nothing on line that does this. As others have said, this can be a huge legal battle but the multiple complaints and the allergies does increase the Associations chances of winning.

I did find an article you may find interesting:

Would You Want to Smell BBQ All the Time? 2015 NY Times article
MelissaP1
(Alabama)

Posts:7170


04/11/2018 3:34 PM  
Call the fire department or fire Marshal to respond to the smoke. There may be a law related to how close one can use smoker/grills. I know when I lived in an apartment, we could not grill on our back patios. (Although many did). It may be a city official like the Fire Marshal can give the best advise on how to handle this situation.

My neighbors are "burners" too. Meaning they burn alot of yard debris or sometime grill. They live in the county so can't do anything about it. 1 of them caught their porch on fire. Nearly burnt down the garage. I leave my back door open to let my dogs out or get fresh air. Plus sometimes run my whole house fan. That smoke smell fills my house quick. Not even a scented candle can knock it out. So I understand those who may call it a nuisance.

Former HOA President
DouglasM6
(Arizona)

Posts:680


04/11/2018 4:12 PM  
So now we've had BBQ smell compared to dog poo and BBQ smoke to that of second hand smoke. None of this will stand in court. I find it very hard to believe that any person could go to the doctor and get an scratch test that says they are allergic to BBQ smoke. That's what it would take to withstand a legal challenge. The city will ask them to do it at night. That's what they do with corporations and manufacturing plants that pollute. Out of site, out of mind.

If the person doing the smoking is willing to take steps to mitigate the smoke, you can make some suggestions:

1. Place a Tee on the top of the exhaust and run it to a large enough shop vac with a hepa filter on it. That should take care of most of it. The Tee must be placed with the 90* outlet pointing out. That way the vacuum doesn't affect the smoking process. If that doesn't work, ...
2. Remove the filter in the shop vac and fill it with water to about 80% capacity. The inlet into the shop vac then needs to be plumbed downward towards the bottom of the vacuum tank. A hose of some type or maybe PVC will work. This will draw the smoke down through the water and basically create a scrubber. I've built them on a larger scale, but I can also see this working.

If any of my neighbors complained about my BBQ smoke I'd do my yard work in a speedo. And being 55 pounds over weight, it's not pretty to see. I can't believe the things people complain about these days.
AugustinD


Posts:792


04/11/2018 7:04 PM  
A couple of condominium secondhand smoke lawsuits, where the claim was "nuisance" or breach of "quiet enjoyment":

https://www.ocregister.com/2013/03/13/condo-owners-win-secondhand-smoke-case/

http://www.floridacondohoalawblog.com/2016/12/30/secondhand-smoke-on-condominium-lanai-what-are-my-rights/
DouglasM6
(Arizona)

Posts:680


04/12/2018 2:15 PM  
Posted By AugustinD on 04/11/2018 7:04 PM
A couple of condominium secondhand smoke lawsuits, where the claim was "nuisance" or breach of "quiet enjoyment":

https://www.ocregister.com/2013/03/13/condo-owners-win-secondhand-smoke-case/

http://www.floridacondohoalawblog.com/2016/12/30/secondhand-smoke-on-condominium-lanai-what-are-my-rights/




Objection!
On what grounds?
Irrelevant.
Sustained. We are not talking about condos. Condos do not have "lots".

DouglasM6
(Arizona)

Posts:680


04/12/2018 2:17 PM  
Posted By MelissaP1 on 04/11/2018 3:34 PM
Call the fire department or fire Marshal to respond to the smoke. There may be a law related to how close one can use smoker/grills. I know when I lived in an apartment, we could not grill on our back patios. (Although many did). It may be a city official like the Fire Marshal can give the best advise on how to handle this situation.

My neighbors are "burners" too. Meaning they burn alot of yard debris or sometime grill. They live in the county so can't do anything about it. 1 of them caught their porch on fire. Nearly burnt down the garage. I leave my back door open to let my dogs out or get fresh air. Plus sometimes run my whole house fan. That smoke smell fills my house quick. Not even a scented candle can knock it out. So I understand those who may call it a nuisance.




Objection!
On what grounds?
Irrelevant.
Sustained. We are not talking about a grill on the balcony or back patios. Apartments do not have "lots".
KerryL1
(California)

Posts:5090


04/12/2018 3:22 PM  
Just yesterday I read are new article about someone (a woman, I think) who just was awarded a huge settlement for health damage she suffers due to a lot of neighbor BBQ or smoker fumes she breathed frequently. Sorry I can't remember more, but I'm sure it can be searched.
JanetB2
(Colorado)

Posts:3904


04/13/2018 12:44 AM  
SIGH ... People at what point in time are we finally to come to the conclusion that Citizens should be allowed to do certain things such as BBQ, have nice fire pits, etc. in their back yards on their own usually high dollar REAL PROPERTY! You know PROPERTY which is supposedly also protected by our United States Constitution and not to be infringed upon beyond a certain point!!! I predict that potentially if rights keep getting royally stepped on there at some point will be a royal revolt.
DouglasM6
(Arizona)

Posts:680


04/13/2018 10:28 AM  
These same people that complain about the fire pit smoke and/or BBQ smoke are driving cars that put out a lot more dangerous emissions. The worst thing you can do when driving in congested areas is breath.
TimB4
(Virginia)

Posts:15577


04/14/2018 3:21 AM  
I will say that when I pass a BBQ place, I do like the smell.

However, I don't have allergies. When I drive by the place I spend 20 seconds or less by the smoke. Unless you are actually having to (or had to) deal with any issue 24/7, it is impossible to completely relate to the experience others may be having.
SheliaH
(Indiana)

Posts:2143


04/16/2018 7:28 AM  
What Tim said!

Of course, you have rights, but have you forgotten that Rights come with Responsibilities??? I love to barbeque myself (I've don't it in winter once or twice!), but thoughtful neighbors should also consider the effect their actions might have on others. True, some people tend to whine about everything, but at first blush a thoughtful neighbor should at least consider the possibility the smoke is creating problems, do a little investigation and then try to reduce the possibility of the problem reoccurring.


DouglasM6
(Arizona)

Posts:680


04/16/2018 12:15 PM  
Posted By TimB4 on 04/14/2018 3:21 AM
I will say that when I pass a BBQ place, I do like the smell.

However, I don't have allergies. When I drive by the place I spend 20 seconds or less by the smoke. Unless you are actually having to (or had to) deal with any issue 24/7, it is impossible to completely relate to the experience others may be having.




Objection!
On what grounds?
Irrelevant. We are not talking about 24/7 BBQ smoke.
Sustained. .
TimB4
(Virginia)

Posts:15577


04/17/2018 4:31 PM  
Doug,

It's obvious that you don't see an issue here.

I think you understand the point of my previous posting.
RyanV2
(New York)

Posts:5


04/17/2018 9:55 PM  
I wouldn't want such a person in the neighbourhood. Neither do I need those stupid teens with vape containers or whatever you call them. It's noxious when you have a person in your house who's allergic to smoke and dust.

Check out some[url=https://www.theguardian.com/society/2015/feb/22/vaping-e-cigarettes-appeal-fading]vaping statistics[/url]
DouglasM6
(Arizona)

Posts:680


04/18/2018 12:58 PM  
Posted By TimB4 on 04/17/2018 4:31 PM
Doug,

It's obvious that you don't see an issue here.

I think you understand the point of my previous posting.





Correct.

Many times in discussions like this, we draw to conclusions because of the circumstances we have created in our minds, not the actual situation. There is no possible way that he is smoking his meat 24/7. There is also no possible way the wind blows the same direction 24/7. I think it's huge mistake for any HOA to take this on as a violation. Other info missing, is the size of the lot. Are these acreages? Cookie cutter homes 8 feet apart?

Here is how I would handle it. I would ask that the person posing the complaint, because of allergies, substantiate the allergy. Then I would ask the person filing the complaint to contact myself or other board member each and every time the smoke is bothersome so the situation can be evaluated. I would then chart how much time per day/week/month the bothersome smoke was actually a problem and proceed from there. If, at that time, the BOD felt there was an issue, we would take action. First by helping to mitigate the smoke. It may be as simple as raising the exhaust on the smoker.

But I stand firm in my belief that complaining about BBQ smoke is foolish. When we were kids, if you had an allergy to bermuda grass, you didn't play in the grass. You did not ask the neighborhood to remove all of the grass.

I'm very interested to see how this plays out. I hope we get the final word on it.
Please login to post a reply (click Member Login on the menu).



Get 2 months of free community web site hosting from Community123.com!



News Articles Provided by: Community Associations Network
News, articles and blogs about condos/HOA's

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
HindmanSanchez Legal Notice:  (For messages posted by HindmanSanchez) This message has been prepared by HindmanSanchez for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Members of HOATalk.com should not act on this information without seeking professional counsel. Please do not send us confidential information unless you speak with one of our attorneys and get authorization to send that information to us. If you wish to initiate possible representation, please contact an attorney in our firm. Our attorneys are licensed to practice law in the state of Colorado only.

Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement