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QUESTION/ANSWER BY JOHN H. GETTINGER, ESQ.

Question:

Our subdivision has a homeowner who is sometimes threatening to others. The police has been involved. What are the obligations of the Homeowners Association related to this problem neighbor?

Answer:

When confronted with such a situation, most of our community association boards would prefer not to get involved. After all, these complaints often escalate into a "he said - she said" dispute between homeowners and the board is often hesitant to get caught in the middle. Moreover, the Board recognizes that the residents have their own legal recourse against each other, namely, the resident can seek an injunction against the other resident enjoining the conduct causing the nuisance or disturbance.


Unfortunately, it is not easy for the Board to wash its hands of the matter. Most community association by-laws and rules and regulations contain certain restrictions on the use of units within the community. They typically provide that "no nuisance shall be allowed on the community association's property, nor shall any use or practice be allowed which is a source of annoyance to its residents or occupants or which interferes with the peaceful possession or proper use of the property by its residents or occupants." They also typically provide that "no immoral, improper, offensive or unlawful use shall be made of the property." The Board has a fiduciary obligation to enforce its by-laws and rules and regulations. It should not take a blind eye to a complaint made by one resident against another arising out of conduct which is alleged to be in violation of the by-laws or rules and regulations. The situation becomes somewhat more complicated where the conduct complained of poses a risk to the health, safety and welfare of a resident (the conduct alleged consists of violence or threats of violence or unlawful activity). If the board fails to get involved, in the event that the resident suffers personal injuries or damage to personal property at the hands of the other resident, the board may have liability to the resident based upon its failure to take action to enforce its by-laws and rules and regulations in violation of its fiduciary obligation to do so.

Under these circumstances, we advise our community association clients to conduct a thorough investigation of the complaints. This includes determining whether there were any other complaints lodged against the homeowner and interviewing residents who own homes in the vicinity of the homeowner to determine if they witnessed the conduct complained of. The board should also determine if any reports were filed with the local police department and, if so, obtain copies of all such reports. After a thorough investigation, the board should determine, based upon what it has learned, if it should take further action. If the board determines that it truly is a "he said-she said" dispute between neighbors and that the complaint has not been supported by any independent sources, then it can reasonably decide not to take further action.


However, if the board determines that it should take further action, we advise our clients to require the homeowners to attend a meeting of the board. The board can then conduct a hearing at which it can question the homeowner and any witnesses. If the board is overly concerned with the contentiousness of the situation or would feel more comfortable having legal counsel conduct such a proceeding, the board can have legal counsel present at the meeting who can question the homeowners and witnesses and a stenographer who can transcribe the proceedings of the meeting. Following this practice has the added benefit of preserving the record of such proceeding. Once the hearing is concluded, the board should have enough information to determine what action, if any, it should take against the homeowner. Such actions include, but are not limited to, imposing fines for past and future violations or enjoining such conduct by commencing a court proceeding. Importantly, if the board conducts a thorough investigation and a hearing, it is likely that any action (or inaction) which the board may decide to take will be protected under the business judgment rule.

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