Townhome association suits in Clearwater Florida (renter, attorneys, tenants)

[Sammiemor]

Hello!
I share a front archway with my neighbor who has rented her property out for 14 years since I've own my property. Her new tenants that moved in last August the husband is a chain smoker without a job and smokes under the common archway every 20 mins 24/7 even midnight, 2am 4am etc since he doesn't work nor does he sleeps. Our doors are 2 ft from each other. His smoking wakes me and my roommate up since the smoke comes through the windows and under the front door even when closed. I complained to the home owner 2 weeks after they moved in and asked if she would ask the husband to smoke away from the front door but she refused since she was just happy to have renters. However, after winter passed and he was outside smoking constantly and I wanted to enjoy the fresh air by opening my windows his smoking became a huge nuisance and I sent an email to the association but they did nothing to uphold the nuisance clause in our document. Therefore, I put up a temporary partition to block his smoke that can barely be seen and now the association/board is forcing me to take down the temporary partition and repair any holes in the stucco at my own expense when other neighbors have put up patios on common grounds without approval and put holes in the stucco when putting up decorations, American flags etc but haven't been forced or threaten that they should take it down in 7 days or else and the removal will be billed to them, the home owner as I have. I am sending a letter threatening to suit them if it's removed since it's my civil right to protect my health and I have a right to fresh air and shouldn't be forced to endure secondhand smoke. Also, the board isn't enforcing the nuisance clause which is in the document. I am contacting an attorney and wonder what others' think of my case.


Thanks!

[tom11011]

What you have there can lead to what is called an Actionable Nuisanse Lawsuit. I don't know about the laws of Florida, but in Ohio, this would be a civil lawsuit. Maybe there is law in Florida for nuisanses to your property whereby it would be a simple matter of police involvement. However, it is probably a civil matter where you could file suit for monetary damages. If you are successful in court, you can win monetary damages compensating you for putting up with an offensive condition, or a court-ordered injunction or both.

[gumbyfly]

Have you tried asking the smoker - in a non-condescending manner - to smoke somewhere else? Talking to the property owner and association is not necessarily addressing your problem directly.

[Innertuber]

File against the association and it will get their attention. Probably give them something to do!

[tom11011]

The association has no jurisdiction in this matter most likely. Associations are generally only empowered to enforce the covenants and declarations of the community which everyone is deed bound to live by, design guidelines, and what goes on in the common areas of the developments.

At best, it's a police matter, at worst its a civil lawsuit. However, the police probably have no jurisdiction either. Although trespass and nuisance are very close, this would not be considered a trespass most likely but I'm from Ohio not Florida.

[Sammiemor]

Thanks for all of your opinions. I talked to an attorney who sent a letter today, threatening to suit for damages (property lost value if I have to sell, danger to my health as will as having to put up with the nuisance and harrassment) if the partition is removed.

I was imformed that I can suit the association, board members and the home owner for not preventing the renter from being a nuisance.

I guess I will have to wait to see what happens. The temporary partition only lessens the nuisance but it's still there to a degree.

[Sammiemor]

Originally Posted by Innertuber

File against the association and it will get their attention. Probably give them something to do!

Will do, thanks!

[BucFan]

I missed where you answered the question about directly asking the smoker to smoke elsewhere. If you didn't and I were the judge in the case, I'd laugh your ass right out of the courtroom. Whatever happened to directly talking to people?

[Sammiemor]

You shouldn't have to ask someone to do the right thing.....I was raised and still believe that a person shouldn't need a personal invitation to do the right thing....
Also, I knew 100% that he was well aware by my actions (tried using a fan, closing my windows etc) and receiving a letter from the association that it was a nuisance....

My attorney gave me a court transcript where a case like mine was won in 2005 in Florida which is why he decided to represent me

But yes, I did and it lead to a headed dispute and I was told in the letter by the association to forward any compliants to them and not to the renter/home owner....

Glad you aren't going to be the judge

[newyorker24]

This is why I would never be on the board of an HOA- because of people like this. You decided to put up a partition, which is against the rules, and now you want to legally go after the board members for telling you to take it down. If you got no response to your email, you should have gone to one of the monthly meetings and discussed it with them in person.

I understand the smoke is bothering you- it would bother me too since I have asthma problems, but I just feel like everyone wants a reason to file a lawsuit against someone nowadays. Of course the attorney took your case- he's getting paid to take it! I have several friends from college that are attorneys now and most of them really do not care why their client is filing a lawsuit as long as they will make money from it.