What You Can Do About Neighborhood Noise From Fire Pits

QUESTION:

We purchased an end unit condo in Barnstable County. After we moved in, our condo association installed a fire pit in a common area about 25 feet from our bedroom window. Since then, whenever residents use the fire pit we can clearly hear noise while inside our unit. The noise is present at all hours, even late at night. We contacted our condo association and asked them to create a curfew for fire pit use but they refused. We looked at fire pit laws and it looks as though in our municipality fire pits need to be installed 30 feet from any habilitation. We informed our condo association of this law but they have not moved the fire pit. What rights do we have? What can we do?

ANSWER:

Year 2015
It is likely your Condo Association looked at the Code of Massachusetts Regulations and found this passage:

“Persons 18 years of age or older may, without a permit, set, maintain or increase a reasonable fire for the purpose of cooking, upon sandy or gravelly land free from living or dead vegetation or upon sandy or rocky beaches bordering tidewater, if the fire is enclosed within rocks, metal or noncombustible material.” 527 CMR 10.22(3).

The rule seems to give your condo association the right to place a fire pit in common areas as long as they are following the rules regarding use and fire safety. If any of the rules are being violated – for example, if the fire pit is not being used for cooking, if the fire pit is being used by minors, or if the fire pit is not located on gravel or sand – you can contact the Falmouth Fire Department because the fire pit does not meet regulations or local fire laws.

Even if the fire pit is compliant with the rules, you may have a private nuisance complaint. Massachusetts law says the following about nuisance claims:

“The purpose of a private nuisance action is to obtain a remedy *231 for interference with the use and enjoyment of property.” Taygeta Corp. v. Varian Associates, Inc., 436 Mass. 217, 230-31 (2002). “A private nuisance is actionable when a property owner creates, permits, or maintains a condition or activity on [its] property that causes a substantial and unreasonable interference with the use and enjoyment of the property of another” (emphasis omitted). Id. at 231.

In this case, you may have a nuisance neighbor law claim against the condominium association or against specific unit residents using the fire pit. If the nuisance claim is against specific residents, the claim would be that they use the fire pit and create noise that interferes with the use and enjoyment of your unit. If the claim is against the condo association, the argument would be that the condo association has permitted, created and maintained a fire pit that causes interference with the use and enjoyment of your end unit condo.

If you wish to assert a nuisance claim, you must know that “[a] private nuisance may be produced by the creation of artificial conditions on the land.” 37A Mass. Prac., Tort Law § 26.2 (3d ed.). However, “[n]ot every interference with a person’s use and enjoyment of his property is a nuisance”. 37A Mass. Prac., Tort Law § 26.2 (3d ed.) “[a] zoning violation, per se, does not constitute a private nuisance so as to permit a private person to maintain an action for injunctive relief.” Id.

Although the potential nuisance is a man-made condition created by the condo association, the installation and/or use of the fire pit does not automatically constitute a nuisance.

Fortunately, you may have other claims as well. For example, installing the fire pit may violate the master deed for the condo association, the by-laws established by the association, or the Massachusetts condominium statute (Chapter 186A of the Massachusetts General Laws). If your condo association is a Trust, the fire pit may violate the provisions of declaration of trust – the declaration of trust is the document that creates the “Trust.” Reviewing all these documents is necessary to determine whether any provisions of the documents have been violated. In some cases, you may even have a negligence claim against the condominium association.

Since condo rules and by-laws can be complex, it’s best to consult with a qualified attorney who is familiar with condo association disputes and real estate issues. Calabrese Law Associates is pleased to offer contract dispute, real estate dispute, and condo association dispute legal representation. Our attorneys work with condominium residents, property owners, landlords and tenants to resolve disputes or initiate legal action in situations where negotiations have not been successful. To learn more about your legal rights, please contact Calabrese Law Associates for a consultation.

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