4.12 Nuisance

• Library: South Carolina Community Association Law: Condominiums and Homeowners Associations (SCBar) (2019 Ed.)

4.12 Nuisance

Condominium documents may proscribe activity or behavior constituting an unreasonable source of annoyance to owners, or that interferes with the use of the condominium property for its intended purpose.³¹⁷ Sometimes the documents prohibit loud noise, or noise after or before certain hours. Occasionally documents will specifically prohibit nuisances on the condominium property. Nuisance, of course, is a common law tort and it needs to be distinguished from actions based on condominium regulations against annoying activity or behavior. At common law, nuisance is anything that works hurt, inconvenience or damage.³¹⁸ It is "the unlawful use of property causing material annoyance, discomfort or hurt to another person."³¹⁹ Nuisance is an unreasonable interference, that s continuous or has the potential to recur, with the use and enjoyment³²⁰ of the land of one person by the conduct of another on his or her land.³²¹ A lawful activity may be a nuisance if conducted negligently,³²² but nuisance does not require negligence, and lack of due care need not be shown in a cause of action for nuisance.³²³ One South Carolina condominium case involving nuisance is Brooks v. Council of Co-Owners of Stones Throw Horizontal Property Regime I³²⁴ In Brooks, the purchaser of a condominium apartment under an executory contract argued that his interest in possession, rents, and profits in the apartment entitled him to bring an action for nuisance even if he was not the equitable owner. The court agreed that ownership or possession of land is not required to state a cause of action for nuisance. The nuisance in Brooks involved an alleged diversion of water from other apartments and common elements that flooded the purchaser's apartment on several occasions. The court said that even if it could be said that the purchaser voluntarily came to that nuisance, he was not barred from recovering damages for his injuries.

In Winget v. Winn-Dixie Stores, Inc.,³²⁵ the South Carolina Supreme Court made an observation about nuisance that has particular relevance to condominiums.

People who live in organized communities must of necessity suffer some inconvenience and annoyance from their neighbors and must submit to annoyances consequent upon the reasonable use of property by others.³²⁶

While the court was undoubtedly referring to municipalities, not condominiums, when it used the phrase "organized communities,"³²⁷ the language is relevant because condominiums have frequently been compared to local governments³²⁸ and, more importantly, three decades after Winget courts cited the earlier decision and used the exact same language in cases involving planned residential developments.³²⁹ In one of those cases, LeFurgy v. Long Cove Club Owners Ass'n,³³⁰ the plaintiffs lived in a planned community of homes surrounding an 18-hole golf course operated by the defendant association. They claimed that a newly constructed golf tee box adjacent to their home was a nuisance because of noise from conversations, golf carts in operation, and balls being hit. The tee box was used three times a day, and not at night. The court, citing Winget, said people "... living in organized communities must suffer some annoyance and inconvenience from each other incident to city life... ." The plaintiffs, noted the court, chose property abutting a golf course and the limited golf-related activities — occurring in a golf community — to which they were subjected did not render the location of the tee box or the manner in which the course was being operated a common law nuisance subject to injunction.

A distinction must be made between nuisance at common law, and the use of the term or similar terms in condominium documents. A Florida opinion, Candib v. Carver³³¹points out the distinction. In Candib the declaration provided:

No nuisances shall be allowed on the condominium property, nor shall any practice be allowed which is a reasonable source of annoyance to unit owners, or which interferes with the peaceful and proper use of the condominium property by any unit owner... .³³²

Analyzing this clause the court came to two conclusions:

(1) owners were given the right to be free of annoyances which would not be actionable nuisance; and
(2) a violation of the right granted by the declaration could warrant an injunction or damages against the offending unit owner.

Thus an owner may pursue a nuisance action regardless of the condominium documents,³³³ but if they contain a conduct restriction such as in Candib, the owner may have a remedy even though there is not an actionable tort.³³⁴ However, in a South Carolina case involving a planned golf community,³³⁵ protective covenants provided that: "No noxious or offensive activity shall be carried on upon the property, nor shall anything be done thereon tending to cause embarrassment, discomfort, annoyance or nuisance to the neighborhood." A master-in-equity found that a tee box near the plaintiff's home was a violation of their "privacy rights" under that covenant. The...