HOW DO ASSOCIATIONS HANDLE|
THE MOST DIFFICULT ENFORCEMENT CASES?
by Beth A. Grimm, Esq.
ost associations, at one time or another, run into a really difficult enforcement case. It may seem that things are going along smoothly for years and then it hits. I have many stories, some remedies that worked, and some that didn't. I have seen all kinds of cases, from:
- aggressive dogs
- strategically placed smelly cheese balls
- noisy wind chimes
- threats of bodily harm, vandalism, and harassment
I have spoken to and tried to help many Boards and homeowners groups attempting to deal with crime, drugs, surly and unsavory visitors at all hours in their neighborhoods, confrontations over parking and towing, and endless nonsensical threatening letters and demands. I have also dealt with sabotage, backstabbing, rumor-spreading, proxy fights, political upheavals, and people who have great resentment because of a Board's attempts to enforce the governing documents of the association. I myself have been threatened to "stay down in the flat lands or be chased all the way back to the County line" when I agreed to attend an association meeting involving a particularly divisive issue.
In 1997, I was threatened by an anonymous person on the Internet using a false name who has defamed me on a newsgroup and threatens to do everything he can to degrade my reputation under the protection of anonymity the Internet provides, not only in the U.S. but also in the Caribbean and Europe; because of some communications from me to the membership that exposed some conflicting motives and revealed some sabotage. I know of other actual real life difficult situations actually involving croaking frogs (no, I don't mean dying), a punch in the face, and an angry owner's arson of the attorney's office and courthouses (as the case and other cases against this owner moved from one to another. I even read in The National Enquirer (I was in the grocery line, OK?) about a case in New York where an angry tenant ran over the Board President, three times and then got out to see if there were any dents in his VW Bug. He was apparently (according to the story) angry about the President's constant nagging about washing his car in the parking lot, which was a prohibited activity. This business is never dull. And you can never be too careful.
A STEP-BY-STEP "RECIPE" FOR SUCCESS
There are several things an association, and the neighbors, can try. Some work better in some cases while others might work better in another situation. Sometimes you just have to get an attorney involved. Here are some possible forms of action and the initial steps.
Step 1 - Acting on a Complaint - THE INVESTIGATION
The most problematic enforcement questions usually start with complaints of a neighbor or neighbors. The first step for the association is to investigate the complaint. If the investigation does not reveal by independent verification that the problem that is obvious, then the management needs to request that the complaint be put in writing (if not done already). If the parties are unwilling to put the complaint in writing and there is not an obvious problem, then it will be very difficult for the association to justify taking any action.
Additionally, in my own experience, I have found that if complaints are not put in writing, that the stories sometimes change. This can lead to embarrassment, and may require reversal of "charges" of harassment or discrimination, and an apology. From my perspective as the Association's attorney looking for resolution, if complaining parties are not willing to put their complaints in writing, it leads me to believe that the parties will also resist testifying if some court action is required to abate the problem. This needs to be dealt with at the beginning, or it is hard to move forward. If a Board commonly acts on complaints without requiring a writing, it is asking for trouble. If people are concerned for their safety, or about retaliation, get your attorney involved right away. There are ways to provide protection and keep the complaints confidential.
Step Two - It is important to determine if a CC&R violation is or may be occurring.
When an association investigates a complaint, one of the purposes is to determine if the conduct or activity is a violation of the Declaration of Covenants, Conditions, and Restrictions (aka CC&Rs), or the rules. The problem may be an ongoing dispute between two or more neighbors, which is fueled by retaliation and complaints to the association.
If a violation of the CC&Rs is or may be occurring, then the association has an obligation to take reasonable action to abate the problem. However, if the dispute involves cross-nuisance claims, such as one neighbor who is turning the stereo up extra loud, and the other who is retaliating by banging on the walls, both parties may be guilty of causing what would qualify as a nuisance, but the association may want to leave the two to resolve their own difficulties. A good indicator of this sort of problem is continual complaints to the manager, first one owner and then the neighbor. If only two or three homes are involved, and the residents are complaining about one another, the board may choose to decline to take action - but it should be an affirmative decision, based on reason, and should be communicated to the complaining parties in writing. I usually suggest the letter be accompanied by information as to how to reach a local low cost mediation service.
Step 3 - Deciding What Course of Action to Undertake Next - HOW TO PROCEED
Timing is everything - what is the urgency? Absent urgency (and sometimes even if there is) "due process" is necessary. The association will generally start the process of CC&R or rule violation abatement with letters to the problem owner(s) and/or tenant(s). "Due Process" (or "Fair Hearing Process" as it should be called) means notice and an opportunity to be heard. The "hearing" can occur in person or through a written response provided by the accused. In many cases, if the first letter is more inquisitive then accusatory, the results are better. Accusatory letters tend to make violators very defensive and sometimes that sets the first barrier to resolution. If there is a critical situation or obvious violation that needs immediate attention (not counting criminal or freaky activity that would subject the violator to arrest), the first letter might go right to a hearing date and demand for the parties to appear.
The Association has many options to consider if normal contact does not resolve the problem and more drastic measures are needed, which could include:
- Scheduling a Board hearing: The purpose of a board hearing is three-fold: (1) to provide a fair hearing process for the party being accused, (2) to bring the parties face to face with the board and determine if the problem is resolvable within the Association's procedures, and (3) to get a real look at the situation and the parties involved, how they conduct themselves, and how they intend to proceed if the matter is not settled.
- Fining for the violation (due process is necessary): The purposes of fining are to: (1) deter prohibited activities, and (2) to punish for breaking the rules and regulations.
- Sending a Request for Resolution through ADR (Alternative Dispute Resolution which could be mediation or arbitration) which is required in some situations under Civil Code Section 1354: The purposes of ADR, which generally includes mediation or arbitration, are (1) a means of settling disputes without resorting to litigation, (2) a means for access to a speedy and less expensive process, (3) a means to get an objective determination of the dispute, and (4) (in the case of mediation) a means to bring the parties together in a safe and objective environment where they can get trained help to resolve their differences.
- Calling a "Neighborhood Watch" meeting and inviting local law enforcement and the association's attorney to come and talk about what to do about really difficult neighbor problems that threaten the peace and safety of residents: The purpose of a neighborhood watch meeting is to get the neighbors involved - there is strength in numbers in the most difficult situations, and setting up phone trees and communication processes helps people feel united in a cause and not so helpless.
- Calling the police and asking to have police reports filed or to have problem owners arrested if a crime is being committed and/or contacting the local Police and County Social Services Department with a more intensive request - in an attempt to initiate a "5150" hold (described below) : The purposes of involving the police and the social services department (in the case of a "5150 crazy") or other county agencies (for example - the local animal control services agency in nuisance animal cases) are: (1) to get the help of people trained to deal with the sorts of problems that have arisen, (2) to help create a written "paper trail" of agency reports of incidents which will be needed if you end up in court, and (3) to be able to show that you have exhausted your administrative agency remedies in the event you have to go to court to resolve the issues.
- Organizing a "group" small claims court action: The purposes of initiating the "group" small claims court actions in nuisance and other enforcement activities are (1) to get the owner's attention, (2) to get them into court to be held accountable and (3) to punish on a level that exceeds what you can generally accomplish with fines.
- Seeking Temporary Restraining Orders and Preliminary and Permanent Injunctions which require application to the court: The purposes of getting restraining orders are to (1) stop prohibited conduct or require certain action, (2) when needed, to seek immediate remedy, (3) to involve the court when the owner is ignoring the association letters, calls, fines, and demands.
- Pursuing an eviction of an unruly tenant if the Association has that authority within its governing documents: This is a very serious remedy and requires legal advice; the sole purpose is to force a tenant out that is causing problems.
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By Beth A. Grimm, a community association attorney in California, East Bay Resource Panel Chairperson and author of various publications and books about condominium living and the law, and a frequent contributor to THE ECHO JOURNAL.
copyright 2001, Beth A Grimm, all rights reserved... any attempt to improperly use or republish these materials and/or this article without the author's permission is subject to legal action.If you would like printed copies provided through the mail from Ms. Grimm, click on the order form attached. There is a charge of $20 for each article for this service.
THE MATERIALS BEING MADE AVAILABLE HAVE BEEN WRITTEN OVER THE YEARS AND DO NOT COVER STATUTES OR CASE LAW OR PRACTICAL ISSUES THAT AROSE AFTER THEY WERE WRITTEN.
By Beth A. Grimm, Attorney. A "service oriented" attorney and member of ECHO and CAI and various other industry organizations in California and nationally, host of the website www.californiacondoguru.com; two Blogs: California Condominium & HOA Law Blog, and Condolawguru.com Blog, and author of many helpful community association publications which can be found in the webstore on her site.