More and
more frequently, community associations are seeing
disputes or disagreements that arise between its
members. Perhaps
one neighbor is too noisy for the other neighbor.
Or perhaps they are arguing over who should maintain
what portion of the common flower bed.
Or one member is parking in a spot favored by the
other. Whatever
the cause of the dispute, sometimes they rise to the level of
Association concern.
Most
condominium documents and many declarations and covenants for
community associations contain prohibitions against “immoral,
improper, unlawful or offensive activity” within the
community, or prohibit members from doing anything which may
become “an annoyance or a nuisance” to other members.
When should the Association become involved in those
disputes, if at all?
Many
condominium and community associations have routinely declined
to become involved in such neighbor-to-neighbor disputes.
Perhaps it was because there was questionable validity
to the claims, or because the Association did not want to get
involved, or because the Association lacked the ability to
deal with those issues.
Or, maybe it was simply because the Association didn’t
have the funds to pay legal fees or other costs to deal with
the issue.
Although it is tempting to tell the neighbors to simply work
out the disagreement amongst themselves, that may not be good
advice.
The condominium bylaws or the restrictive covenants in a subdivision are covenants that members of the community can expect to adhere to and can expect to be reasonably enforced. If one neighbor’s stereo is so loud so that it interferes with the ability of another neighbor to enjoy their home, what recourse does that member have? Often, a condominium co-owner or a subdivision homeowner typically has the right to enforce those covenants themselves, such as starting a lawsuit against a neighbor in violation. And, the conduct of a neighbor might be in violation of a municipal ordinance or regulation which may be enforceable by law enforcement personnel. Do those remedies mean that an Association need not interfere? Not necessarily.
The application
of the Federal Fair Housing Act and various discrimination laws to
community associations could be problematical.
For example, an Association may become liable for allowing
a discriminatory housing practice to be carried on by one of its
members/landlords. An
Association may be ill-advised to not act when it is aware that
one of its Association members refuses to rent or sell a unit
based upon race, color, religion, sex, familiar status, or
national origin.
While that is not to say that the Association is automatically
liable, it could be liable in the event that it knew the practice
was continuing and it did nothing to discourage it.
Similar liability could result if an Association were to
allow the sexual harassment of one member against another creating
a hostile environment.
A community
association has an obligation to reasonably investigate such
allegations promptly.
If the investigation indicates that there is substantiation for
the charges, and those charges constitute a violation of the
condominium documents or the declarations and covenants, or
applicable law, the Association may have an obligation to act.
At the very minimum, that action may take the form of a
letter to the offending member, indicating that such action will
not be tolerated within the community.
Or, perhaps fines could be assessed or litigation could be
commenced. If, on the
other hand, the allegations are found to be without any
substantiation, at least the Association has fulfilled its duty to
investigate the charges to determine whether a violation of the
documents has occurred.
We have found
that many of these neighbor-to-neighbor disputes arise because of
the lack of communication and understanding between the neighbors.
Some Associations have successfully acted as an
intermediary between the neighbors, in order to facilitate better
understanding and respect for the concerns of the other.
Or a resolution may involve some form of mediation with a
third party. If clear
violations of the governing restrictions cannot be resolved by an
informal process, perhaps the courts need to be involved.
In any event, an association is well-advised to proceed
carefully in this area, and when necessary, seek advice of counsel
or other applicable professionals to minimize the risk of
liability to the Association.