Chapter 10 - § 10.17 • NUISANCE

• Jurisdiction: Colorado

§ 10.17 • NUISANCE

§ 10.17.1—Common Law Nuisance

Nuisance is a common law tort the essence of which is the "protection of a property owner's or occupier's reasonable comfort in occupation of the land in question."⁵⁴⁷ Private nuisance has been defined as "a non-trespassory invasion of another's interest in the private use and enjoyment of his land."⁵⁴⁸ To prove nuisance, the plaintiff must show that the defendant unreasonably and substantially interfered with the use and enjoyment of his or her property.⁵⁴⁹ Liability rests on a duty owed as an occupier of land to prevent conditions on the land, particularly those created by the defendant, from injuring others.⁵⁵⁰ Generally, for interference to be unreasonable, it must be significant enough that a "normal person" in the community would find it offensive, annoying, or inconvenient.⁵⁵¹ To prevail, the plaintiff must show interference with the use and enjoyment of property.

Of particular significance in the context of common interest communities is that the plaintiff need not have an ownership interest to maintain the action. Nuisance is the invasion of interest in the private use and enjoyment of land,⁵⁵² and the plaintiff must simply have an interest in the property affected by the alleged nuisance. The Restatement of Torts provides that liability only extends to those who have property rights and privileges with respect to use and enjoyment of the land affected, and that those included in that category are possessors of the land,⁵⁵³ owners of easements and profits, and owners of nonpossessory estates.⁵⁵⁴ Thus, an association should be able to bring a nuisance action against a unit owner or anyone else whose activities interfere with the use and enjoyment of the common property, and the "owner" of a cooperative unit whose actual interest is designated as being in personal property should also be able to bring an action in nuisance.⁵⁵⁵

The South Carolina Supreme Court made an observation about nuisance with particular relevance to common interest communities when it said that "[p]eople 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."⁵⁵⁶

One Colorado common interest community case that concerns nuisance is Woodward v. Board of Directors of Tamarron Ass'n of Condominium Owners.⁵⁵⁷ In Woodward, the board approved a unit owner's request to open a blind wall adjacent to, and in front of, the appellants' unit by opening the side end of a deck and installing windows. The result was that the windows and deck opening faced the appellants' unit at an angle. The expressed basis for the approval was that substantially similar modifications to other units had been previously approved. After the modifications were completed and the appellants became aware of them, they brought an action for, inter alia, nuisance against their neighbor and the board. They alleged that opening the deck and installing windows allowed the neighbors to see directly into the deck and interior of their unit, destroying the privacy they previously enjoyed, and increased the light and noise emanating from the neighboring unit, interfering with the peaceful possession and use by the appellants of their home. The trial court granted summary judgment for the defendants, finding that modifications to other units were the same as, or substantially similar to, those at issue. But the appellate court reversed, concluding that whether the prior modifications were the same or substantially similar to those at issue was a disputed issue of material fact, as was whether the effect of the deck opening and installed windows had a greater effect on the appellants' use and enjoyment of their unit than the norm in the community. It could not be held, as a matter of law, that the modifications did not meet the unreasonableness test for a nuisance and, indeed, said the court, nothing in the record contradicted the allegations that interference with the appellants' use and enjoyment of their property was substantial. Woodward is a very important warning for associations. The board did not create the alleged nuisance; it merely approved the neighbors' request to make changes to their unit. The association board may very well have lacked the information needed to anticipate the problems that resulted. Therefore, associations — whether acting through the governing board or an architectural control committee — should be especially alert to the effect any proposed change might have on neighbors, and associations might consider having applicants agree to indemnify the association for damages caused by the changes for which they are requesting approval.

A common defense to a nuisance action is "assumption of the risk" or, as it may be styled in nuisance law, "coming to the nuisance."⁵⁵⁸ However, the defense is apparently not recognized in Colorado.⁵⁵⁹ The...