It’s that time of year again, when the weather is changing and people are spending more time….naked in their doorways? No, this is not an early April Fool’s joke. According the neighbors of the Cardinal Glen’s HOA in North Carolina, this is a problem they’ve had to deal with without any help from the police. Because their neighbor remains within his home on private property, he is not legally indecently exposing himself, and criminal prosecution is not an option.
The association does have a nuisance provision in its declaration which is broadly defined as noxious, offensive or illegal activity which could reasonably cause embarrassment or discord with any other owner. However, as pointed out by the attorney in the article, a generic "nuisance" doesn’t hold much weight in court. In Colorado, the courts have defined a nuisance as an “unreasonable interference with the use and enjoyment of property”. Whether an action is found ‘unreasonable’ depends on the facts of each case and ultimately the judge hearing the dispute.
The association will most likely have to amend its covenants to specifically restrict a person standing naked inside his or her home. Because this would be a restriction on use within a unit, the owners will likely need to approve an amendment to the declaration to restrict this activity. Absent authority in the governing documents, associations are not typically empowered to impose rules and regulations on how owners and residents behave inside their homes—at least not where those private activities do not impact neighbors’ use and enjoyment of their homes.
If the declaration is amended to restrict this type activity, the association will then be able to fine the owner (after sending notice and an opportunity for a hearing) until he comes into compliance with the covenants. Sometimes a fine and warning letters may not compel an owner to comply with the covenants. When this occurs, the association may be forced to file a lawsuit against the owner seeking a court order compelling the owner to comply with the covenants – in this case, to cover up while standing in the doorway of his home. At trial, the association will need to show the owner actually violated the covenants. This can be by way of testimony from a witness who observed the man standing naked in his doorway, along with any pictures taken.
As part of the lawsuit, the association should request a judgment against the owner for the fines assessed and reasonable attorneys’ fees and costs incurred. The association could also pursue a judicial foreclosure to remove the owner from the community, if a judgment is not sufficient. In Colorado, this option is only available if the owner’s account balance due equals or exceeds 6 months of assessment fees and the Board of Directors votes and formally approves filing a foreclosure action.