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An injunction is a tool of last resort when dealing with nuisances.
AUTHORRobert Braverman, Braverman Greenspun
Dealing with nuisance complaints is every board’s worst nightmare, especially at condos. While boards can get injunctions against unit-owners, the legal bar is set pretty high. But you were able to win an injunction at a condo where there were some serious complaints about smoking.
We had a situation where there was a unit-owner who was more or less a shut-in and was smoking constantly, to the extent that the smoke not only permeated the hallway and adjoining apartments but also found its way into the building’s ventilation system. And there was a buildup of tar in the ventilation system, which required quite an extensive cleanup. It was the worst situation we’ve seen. A collateral effect was that there were unit-owners who were investors in apartments in fairly close proximity to the smoker’s apartment, and they lost tenants and were unable to find new ones because of the smoke.
What did the board do? Should your first step be trying to reason with the offender?
Going to court should almost always be the last resort. At this building, and at others where we have been successful in obtaining injunctive relief, the board undertook numerous efforts to try to control the conduct. In one instance, the board even laid out money for ventilation equipment to put into the smoker’s apartment. Unfortunately, boards are often not successful in getting the conduct to stop. Both the Condominium Act and most condo bylaws do expressly prohibit the nuisance-type behavior. So those are the two legal bases that we rely on when we seek this type of injunctive relief.
How difficult is it to win an injunction? What are the criteria you have to meet?
When any plaintiff seeks an injunction, they have to show irreparable harm, no adequate remedy at law, and a balancing of the equities in their favor. In other words, you have to show that there’s conduct being undertaken that can’t be compensated by the payment of money and that there is harm being done to the plaintiff as a result of the conduct. And courts view this as extraordinary relief.
So in terms of proof, you need to come to court with your ducks in a row. It can’t just be a one- or two-off instance. The more evidence you have, obviously, the greater the likelihood you will succeed. We have been most successful when people have actually been willing to testify or at least sign affidavits. And very often you see people who are reluctant to do that. So before you go into court, you want to get people who are being affected by the conduct to step up and participate in the process. Because without that type of participation, the likelihood of obtaining injunctive relief is greatly diminished.
In addition to residents who will back up your claim, do you need experts and professionals to testify as well?
Not necessarily. It helps, but something like secondhand smoke is a nuisance that can be testified to by a layperson. You’re experiencing it. You smell it in the common areas, you smell it when you come out of the elevator, or it’s coming into your apartment. There are some mechanical methods to measure smoke, but they’re more of a commercial product and not readily available to the residential marketplace.
What should boards take into consideration when making the decision whether to seek a nuisance injunction?
Again, I think it’s really a last resort because it’s expensive, and there’s no guarantee of success. Most condominium bylaw provisions, unlike co-op proprietary leases, do not contemplate an award of attorney’s fees in connection with a successful action regarding nuisance conduct. And that’s one of the things we look at when we’re considering amending a condo’s bylaws. We typically recommend beefing up attorney-fee provisions in the event of a default, whether it be nuisance or other nonmonetary defaults. Condo bylaws do typically provide for an award of attorney’s fees in connection with monetary defaults, but it’s limited to that.
So without those attorney-fee provisions, you’ll be out of pocket even if you do prevail in court?
Yes. Without a statute or a contract providing for attorney’s fees, everybody pays their own way. But, so does the unit-owner who’s committing the nuisance. So starting the action can sometimes result in a resolution without the court necessarily issuing an injunction. And very often, a judge will get an application for an injunction and tell the parties: “Listen. Go out in the hallway, and get this resolved.” And very often it does get resolved that way. But then again, you’re already in the courthouse.
What’s the takeaway for boards?
Do your best in this type of situation to avoid having to go to court for all the reasons I said. And the other takeaway is, take a look at your bylaws and consider having a smoke-free provision inserted. I think, with the recent legalization of cannabis, these types of situations are probably going to become more commonplace. There’s going to be a novelty, certainly at the beginning, when you can light up in your apartment, and marijuana has an odor, just like tobacco. And some people are not going to like it. More and more buildings are enacting smoke-free provisions to their bylaws, which doesn’t necessarily solve an existing problem, but certainly mitigates against future issues if there’s a grandfathering clause. And if there’s no grandfathering clause, then unit-owners who smoke are going to be subject to the smoke-free provision of the bylaws.