Perhaps you remember the chorus in Dave Mason’s 1977 soft rock hit, “We Just Disagree”:
So let’s leave it alone ‘cause we can’t see eye to eye.
There ain’t no good guy, there ain’t no bad guy,
There’s only you and me and we just disagree.
Ooh-ooh-ooh, oh-oh, oh-oh-oh.
I know, you, the reader, isn’t happy with me as you won’t be able to get the song out of your head (I think it’s actually a pretty good song, by the way) … but, there’s a message here. The message is that residents in community associations won’t always see eye to eye on every issue … and, that’s ok because we simply aren’t wired to agree on every issue. However, sometimes a simple disagreement rises to the level of conflict in an association, which can impact the entire community. As a community association attorney and litigator, I believe the path to reducing conflict in associations begins with proactively and intentionally acting in a manner which will serve to avoid the disagreements, issues and other frustrations that ultimately lead to conflict. This article will outline some best practices that community associations should follow to reduce the likelihood of conflict.
Consistency and Uniformity in Enforcement
In every community association, the Board is charged with the responsibility to enforce the community’s covenants, restrictions and rules & regulations for the benefit of every member/owner in the community. This responsibility is not voluntary; rather, the Board has a fiduciary duty to (1) ensure that the covenants, restrictions and rules & regulations of the community are adhered to/followed by the members/owners; and (2) enforce the covenants, restrictions and rules & regulations against a unit owner who fails to adhere/follow them. Examples of frequently encountered enforcement issues include but are not limited to pools, trash, outdoor elements (architectural control), parking, pets/animals, curtains, outdoor storage, maintenance and playgrounds. Enforcing the governing documents with consistency and uniformity – regardless of the unit owner that is the subject of the enforcement – will greatly reduce the possibility of conflict in the association as well as potential liability for the association. How does an association do this?
Actually enforcing the covenants, restrictions and rules & regulations.
Though it is seemingly ridiculous to have to mention this, every association must actually enforce its own covenants, restrictions and rules and regulations. A failure to do so will lead to cries of inconsistent enforcement by unit owners, which will invariably lead to conflict.
Not playing favorites.
A Board MUST enforce its covenants, restrictions and rules and regulations against Ms. Jones in Unit B1 and Mr. Smith in Unit B2, even if Ms. Jones is the community pariah and Mr. Smith is the kindest person in the entire community. In other words, a Board must not play favorites. Picking and choosing some but not all unit owners as it relates to enforcement will certainly lead to conflict.
Avoiding stupid decisions.
Let’s not sugarcoat it. Community leaders make stupid decisions. Sometimes these stupid decisions lead to inconsistent enforcement of the community’s covenants, restrictions and rules & regulations. The key is either avoiding stupid decisions to begin with, or if that horse has already left the gate, recognizing and reversing course on the stupid decision before it becomes a problem for the association and leads to conflict. Stupid decisions can be avoided by adopting and implementing an enforcement policy which will be applied uniformly and equally to all owners.
Ensuring due process is provided to unit owners before fining.
In the author’s home state of Pennsylvania and many other jurisdictions, the statutes provide an association with the power to levy reasonable fines for violations of the declaration, bylaws and rules and regulations of the association – after notice and an opportunity to be heard is provided to the unit owner. Fining a unit owner and/or engaging in a related enforcement action prior to and/or without providing a unit owner with notice and an opportunity to be heard may lead to a successful lack of due process defense by the allegedly offending/violating owner, and will surely lead to conflict.
Stopping unofficial enforcement.
Unofficial enforcement involves situations where a Board member, committee member or some other person with actual or apparent authority to act on behalf of the association tells a unit owner to do something as it relates to the covenants, restrictions and rules & regulations, but without the consent (vote) of the [entire] Board of Directors. For example, a landscaping committee member unilaterally advises a unit owner to remove a tree because the committee member believes the tree is in violation of the covenants. This is unofficial enforcement because the committee member may be viewed to have authority to tell the unit owner to remove the tree although the committee member, in actuality, had no authority to do so. If a unit owner actually removed the tree as a result of the directive of the committee member, and the tree did not have to come down, conflict would likely be the result. Boards must therefore be cognizant of the propensity for this type of activity to occur and must properly educate and train all community leaders and volunteers to stop unofficial enforcement from occurring. Doing so will serve to reduce conflict in associations.
Good Governance
What does “good governance” in a community association mean, and how can it serve to avoid conflict? Good governance means that the Board makes good decisions for the benefit of the community and that it undertakes this process correctly. To clarify this issue a bit, in Pennsylvania, and similarly in many other jurisdictions, the Business Judgment Rule provides that Board members must make decisions (1) within the scope of their given authority; (2) in good faith; (3) using ordinary care; and (4) in the best interest of the Association (i.e., not in the best interest of the Board Members). The simple process of making decisions correctly will likely serve to reduce conflict, as unit owners will likely be less upset with Board decisions on certain issues and will be less apt to contest Board actions and initiate litigation.
Communication Between Association and Residents – Make Owners Feel Heard
An issue that has always caused strife and conflict between community associations and unit owners involves unit owners feeling and complaining that the Board doesn’t listen to unit owners – in other words, the Board doesn’t allow unit owners to feel heard on association issues, whether big or small. In my practice, I have actively advised and recommended to my clients that the Board should make considerable effort to listen to unit owners on issues – and, sometimes, unit owners bring great perspective and are “right” on the issues they want to be heard on.
In jurisdictions that do not require “open” Board meetings, such as Pennsylvania (absent requirements in the governing documents, of course), my recommendation would be to make some of the Board meetings open to the unit owners to attend. For example, if there is a Board meeting every month, I would suggest that the Board offer to make 25% of the meetings, or three Board meetings a year, open to the unit owners to attend (even if virtual, assuming it is permitted). This would go a long way to having the Board and unit owners actually get to know one another, and will likely lead to reduction in potential conflict between unit owners and the association.
Take Neighbor Against Neighbor Disputes Seriously
We have discussed conflict between the association and unit owners, but what about conflict between unit owners? “Neighbor against neighbor” disputes have been around since people have actually been neighbors to one another and such disputes frequently occur between unit owners in community associations. An association may choose to act as an intermediary between unit owners in order to facilitate harmony, avoid conflict and perhaps reach a potential resolution – and this action may in fact, actually be deemed necessary under HUD’s 2016 Final Rule entitled “Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices under the Fair Housing Act”.
To boil it down to its essence as it relates to Hostile Environment Harassment, the Final Rule explains that “the reasonable person standard under which hostile environment harassment is assessed” is “‘[w]hether unwelcome conduct is sufficiently severe or pervasive as to create a hostile environment is evaluated from the perspective of a reasonable person in the aggrieved person’s position.’” In the association world, this means that a run of the mill neighbor against neighbor dispute may also trigger alleged violations of the Fair Housing Act so long as a member of a protected class (i.e., race, color, national origin, religion or sex (gender), familial status and individuals with disabilities) is making the claims against his or her neighbor.
Why is this a problem for associations if it is one unit owner accusing another unit owner of such conduct? An association’s Achilles heel as it relates to this issue is the fact that the Final Rule was revised to clarify that a housing provider (including a community association) is liable under the Fair Housing Act for third-party conduct (including but not limited to the conduct of a unit owner) if the housing provider knew or should have known of the discriminatory conduct, has the power to correct it, and failed to do so. The Final Rule provides that a community association would be liable for negligence for failing to take prompt action to correct and end a discriminatory housing practice by a third-party of which it knows or should have known was occurring.
With respect to dealing with third parties, HUD explains that a community association generally has the power to respond to third-party harassment by imposing conditions authorized by the association’s CC&Rs or by other legal authority. HUD further explains that community associations regularly require residents to comply with CC&Rs and community rules through such mechanisms as notices of violations, threats of fines, and fines. HUD submits that it “understands” that community associations may not always have the ability to deny a unit owner access to his or her dwelling and that the Final Rule “merely requires the community association to take whatever actions it legally can take to end the harassing conduct”. Thus, if a unit owner allegedly harasses another unit owner who is a member of a protected class under the Fair Housing Act, and the unit owner who is the subject of the alleged harassment advises the association of same, the association appears to have a duty to investigate the issue and affirmatively get involved in some manner to try and stop harassing conduct. If the association fails to do so, it may face liability for violating the Fair Housing Act in accord with the Hostile Environment Harassment provisions of the Final Rule, under the third-party liability rule.
Accordingly, if such allegations are made, the association may have a legal obligation to take swift action to enforce its covenants if applicable, or at least offer to get involved and assist in resolving the issue in order to reduce conflict between the unit owners for their benefit and for that of the association.
Govern With Empathy
Real people face real struggles in life. People were, and are, on edge, and many are ready to jump out of their skin. In an association setting, health, employment and other personal struggles impact unit owners’ jobs, which impact their ability to pay assessments. Personal struggles also impact owners’ ability to maintain their properties in accord with the covenants due to financial issues. When speaking to my clients about these issues, I advised that they should govern with empathy and utilize emotional intelligence, in addition to good faith and due diligence, in making decisions during this time period. I often repeated the mantra, “don’t leave empathy at the door when making important decisions”, and many associations took that advice to heart.
I believe that COVID really changed our outlook on what the concept of “community” really is – I also believe that we took “community” for granted. I know I see it, and I believe that you do as well. Community begins at home, and we had a lot of time at home to closely examine this concept in our own lives. We were, and still are, in all of this together. We must realize that we don’t live on an island onto ourselves and we should prioritize creating a safe and peaceful “community” where we treat others as we want to be treated and where we love our neighbors as we love ourselves.
Finally, if Boards govern with some level of empathy during this time period, it will serve to not only avoid conflict now, it’ll set the tone for when we get through this difficult time – and we will likely see a renewed concept of “community” in our associations.
– Edward Hoffman, Jr., Esq., CCAL
* The content for this Blog post is based in part on the prior written work of the author as originally published in the May/June 2021 issue of CAI’s Common Ground Magazine in an article entitled “Peace of the Puzzle”: https://lsc-pagepro.mydigitalpublication.com/publication/?i=702268&ver=html5&p=21