Condo, co-op and HOA communities are made up of people – and people aren’t perfect. Within a community association, squabbles are inevitably going to break out between unit owners. Oftentimes these problems will be resolved relatively easily, and the owners will reach some sort of reasonable consensus with no lasting animosity or tension between them. Other times, however, the fights will escalate, roping in other owners – and potentially the board.
There are clearly liability issues at play when a board is forced to make a decision in favor of one unit owner or another, and it goes without saying that any conflict that gets physical is a matter for the local authorities. But some conflicts fall into a gray area, and can present a challenge for a board that wishes to do the right thing, yet fears escalating the tension or doing something that infringes on an owner’s rights. It can be a tough needle to thread, but there’s help available.
See Something, Say Something
Starting with the most serious type of conflict first: if residents get into a physical altercation at an association property, the police should be called.
“Breach of the peace is first and foremost a criminal matter to be handled by police,” advises Mark R. Rosenbaum, a principal at the law firm of Fischel Kahn in Chicago. “One of the parties, or an onlooker should make that call. Even if the participants don’t strike each other, but are screaming at one another, that can also warrant calling the police. If the police are called, there could be a number of outcomes: they may just talk to the participants – or only one of the participants. Someone may or may not get arrested. There should still be a police report made by the officers. But anyone other than the parties involved may have trouble getting a copy of that report.”
Philip Brigmond, District Manager at Resource Property Management in Seminole, Florida, adds that “the goal of the board should be to make sure that all residents know they are not the law, nor is it on them to enforce the law, or the rights inherently provided thereby. Anytime we receive a call from an owner with a complaint, we advise them to call the authorities – i.e., the police. It’s very simple. Civil matters are enforced by civil servants. Board matters are enforced by board servants – volunteers. Obviously, someone threatening to cause bodily harm or personal property damage to another is not board business. Someone blocking another’s parking space, on the other hand, would be enforceable at board level, unless it escalates to property damage.”
“The board must act to protect or restore safety and resident health and welfare, but there’s clear case law stating that absent these factors, a shareholder or unit owner may not compel the board to enforce its own rules, including proprietary lease, bylaws and house rules,” notes Steve Troup, a partner with law firm Tarter Krinsky & Dogin LLP in New York City. Should an incident materially interfere with health or safety, or with a shareholder of unit owner’s legitimate rights – “e.g., if a lawful professional’s business invitees are scared away” – then yes, a board should get involved. And this goes, again, for anything involving fisticuffs.
The waters get murkier when no outright physical aggression is involved. At this point, the board needs to be more cautious about its responses to conflict.
“While I do think that the board has some obligation in ensuring that there is peace in the community, there are boundaries that should not be crossed,” says John Kadim, a portfolio manager for property management company Thayer & Associates in Cambridge, Massachusetts. “Working to address community apathy and involvement are more proactive things that can be done to help keep peace, but resident-to-resident conflicts are tricky areas that should be regulated very carefully.
“All residents should be acting courteously and reasonably in a common living environment,” he continues. “This is more of a ‘common sense’ practice that I would consider a standard expectation. These behavioral expectations are often a matter of perspective; one resident may feel as if they are compliant, while the majority of residents may disagree. I typically try to follow the general guidelines for maintenance in the condominium bylaws for helping to determine if the board should get involved. The maintenance standards generally state that if a resident’s unit has a unit-specific maintenance issue, they are responsible for addressing it. If that issue affects other residents’ safety, units, common areas, the property’s marketability or insurability, then the board has the authority to step in.
“In resident-to-resident conflict,” says Kadim, “I try to apply the same principles to determine if the board would have the authority to intervene. If the dispute or issue is solely between those two residents, then I advise them to address it between themselves. If it appears that things may affect other areas, I would review the issue with the board to determine if it would like to take action as an aid to diffuse or address the conflict before a larger issue arises.”
As Rosenbaum notes, the board has an “affirmative duty to enforce their documents, and to make sure that owners and occupants are not violating those documents. But board members and management cannot be everywhere in the building at once. They only know what they themselves see, and what is reported to them.”
As such, adds Rosenbaum, when evaluating a conflict, the first question the association should ponder is “Has anyone complained to the board or the managing agent? Things happen in an association all the time that do not get reported. And unless an owner or occupant – or one of the participants – lodges a formal complaint with the board, then the board may have limited responsibility. Rumor of a ‘fight’ may get to the board, but it will be just that: rumor and hearsay. Many – if not most – associations have rules that say that the board will only address an alleged violation of the association’s documents, if a written complaint is filed with the board (or management). Unless someone is willing to come forward and report what they saw and/or heard, the board probably does not have responsibility to affirmatively investigate the rumors.”
“Getting involved can be dangerous, as you can never be entirely sure that you’re on the right side of a discussion,” warns Brigmond. “The most ‘commitment’ that I would advise for a board to make would be to acknowledge that the association’s attorney will address their concerns on behalf of the board, providing that it is not a civil issue.”
Push Come Shove
Of course, in some communities, there may be repeat offenders who frequently cause both minor and not-so-minor problems. In these cases, eventually the onus will be on the board to do something about these characters.
“Most condo declarations contain what I call the ‘nuclear option,’” says Rosenbaum. “If an owner is repeatedly fined for serious violations of the association’s documents, one of the remedies available to an association is to go to court to get an order mandating the forced sale of that owner’s unit. This is a last-resort remedy against an owner who seems unable to live in a community setting – as opposed to a detached single-family home.
“But any of the steps that an association takes could result in that association getting sued,” Rosenbaum continues. “The courthouse is open to everyone. That said, as long as the association has followed its own rules in addressing the issues, and those rules are consistent with the law governing enforcement of its documents, then the association should be able to successfully defend its actions.”
“Remember the old saw: ‘no good deed goes unpunished,’” warns Troup. “As long as the board acts in accordance with the business judgment rule – i.e., no discriminatory decisions or enforcement of rules; no board member acts according to their own self-interest” – then there is no potential negligence for staying out of a fight.
Kadim agrees. “Intervening in resident conflict is absolutely an area wherein a board would take on additional risk just by involving itself,” he says. “Once involved, the board is essentially acting as an unofficial third-party mediator between residents. It’s very important that the involvement of the board remains as factual and unbiased as possible. If the issue is over something such as one resident parking too close to another’s space, simply by being the third party to reiterate the rules and regulations of the property’s parking policy and to remind the residents that they should be as courteous as possible to one another would be safer, as there are no sides being taken. If the residents are looking for action, things become tricky. Even if the association had the ability to reassign one resident to separate the conflicting parties, this could spark a new conflict down the road.”
As passive as this may sound, the best bet in most conflicts is to consult any and all relevant professionals. It actually seems prudent for a board to outsource some responsibility; after all, that’s why they retain management, attorneys, insurance, etc., in the first place. Do not leap before looking!
Mike Odenthal is a staff writer/reporter for The South Florida Cooperator.