Can the HOA use legal action to stop a nuisance situation?

Perhaps you are on the board of a homeowners association in the Melbourne area. The mixed community consists of single-family residences and condominiums.

Several condo residents have come to you complaining about a neighbor who smokes cigars on his balcony every evening around dinnertime. The cigar smoke disturbs others. What should the association do?

Examining a nuisance

The board should not act as referee on a neighbor-to-neighbor nuisance complaint. In this case, however, the cigar smoke is a daily annoyance to several nearby residents and especially to one elderly person who has asthma. If you share the issue with other board members who agree that a nuisance exists, the board should alert the manager of the community.

Next steps

The manager should initiate action by sending a letter to the cigar smoker, explaining that the smoke is disturbing to his neighbors and to the asthma patient in particular. The primary issue seems to be the timing: Nearby residents find the smell of cigar smoke unpleasant when they are having dinner. The letter might suggest that the offender either smoke behind closed doors or enjoy his cigar in an outdoor location away from the condo units.

Possible remedies

If the dinnertime cigar-smoking continues despite the letter, the HOA rules or violations committee could consider either fining the person creating the nuisance or suspending his rights in some way, especially if HOA regulations contain penalties for this kind of nuisance activity.

Filing a lawsuit

Explore your legal options. If nothing else works and the cigar smoker defiantly continues his dinnertime smoking activities, the HOA could file a lawsuit. Before doing so, however, the association must comply with Chapter 720 of the Florida statutes, which requires that the matter be addressed in mediation. If mediation is unsuccessful, the HOA might go forward with filing a lawsuit in Circuit Court, requesting an injunction to stop the cigar smoker from creating a nuisance that disturbs his neighbors.

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