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Surviving Each Other: the Art of Communication
Beth A. Grimm, Esq.

Communication is a lost art in some HOAs. The majority of people just are lacking in people skills. They might be in a hurry, frustrated, impatient, uneducated, or harried. Volunteer board members tend to get more criticism than praise, and often find themselves spending much more time than anticipated on association business. Then along comes a curious, tenacious and sometimes downright abusive or offensive owner who makes what seem to be unreasonable demands. Sometimes the shoe is on the other foot and an owner suffers at the hands of an overly egotistical, power hungry, or just plain tired board member.  

The title says it all, communication is an art form.  When you mention "communication", the name has a warm touchy-feely connotation. Seems like there should be a "community" of some kind involved. Some form of fellowship, something in common. Common possession or enjoyment of something, such as any use of common facilities; or common obligations, rights, and privileges, common interests, living under the same regulations, some kind of society, common character, similarity and likeness.

Sounds like an ideal situation, doesn't it? However, and if you read and believe everything that is said in the newspapers, you would think homeowner associations Boards are secret societies, police states, and HOAs are nasty places to live. Why?  Much of what is recorded in the newspaper (selectively reported to glamorize or "make it a "horrible-sounding" story) revolves around the emotional side of living in an HOA. People have emotions, and act out and do crazy, immature and strange things. Homeowners who move into an HOA with a "my-home-is-my-castle" mentality are usually not nice about the way they approach things. Oftentimes, they do things without regard for the rules and regulations, and often because they have not read them nor do they understand them, nor do they believe in the board is cable of enforcing them.  Then, when the board is confronted by these kinds of people, they react with a "like-kind" attitude. Defiance begets negativity. Anger begets defensiveness. Attacks invite either a retreat or counter attack. What you have probably found, and what I have found, is that one of the biggest problems that boards have with regard to the homeowners is the inability to communicate "artfully". That is where people on either side of the table can shine. Teaching, directly or by setting an example, better communication skills may turn out to be a most important asset. It may involve assisting the board in proper communications with the owners, reigning in outspoken directors, schmoozing vendors in negotiations on contracts, organizing owners to challenge the Board if you believe that is necessary, soothing ruffled feathers between neighbors who are fighting, breaking bad news to owners in the face of some large rehabilitation or construction project, or helping to write rules or regulations with a "positive flavor" that will invite compliance, rather than evoke criticism and defiance. It may just be communicating your needs to the Board, in a way that will not invite a closed, negative response.

What is communication?  According to Websters', one definition is" to have or hold intercourse or interchange of thoughts; to give, or give and receive, information, signals or messages in any way, as by talk, gestures, writing, etc." Now we have a "sexy" topic, and I hope, your attention.

I find, in the course of my daily work with boards and owners, vendors and professionals alike, a significant void of people skills. Many of the people that I come in to contact with every day are busy, hurried, anxious and short of time and temper. Actually, there are days I find myself in that position. So its time to take pause, and think...

Here are some tips offered for Board members, managers (to improve communications with owners), and some for owners. They might help you.

1.           Take a class on dealing with difficult people, and encourage all of the board members you work with to do the same. These are offered through various sources, such as local community colleges, anywhere that mediation skills are taught, web courses, and of course, there are ample books in the City and County libraries.

2.           Learn more about "active listening", which involves actually listening when a person is talking to you, paying attention and responding every once in awhile in some manner that acknowledges they're talking to you and you are hearing them.  This doesn't mean that you have to agree or disagree with what they are saying, but it does mean that you need to let them know that you hear them. It may help to say so. It may help to ask questions. As a manager, if you have this skill, you can teach it to board members.

3.           One great visualization taught to mediators is a to imagine an angry person to be just like a balloon that is blown up to the maximum air it can take, just before it is ready to explode, leaving no room whatsoever for manipulation. It cannot take any more pressure without popping. Now imagine letting some of that air out. (Remember how when you were a kid if you held the ends just right the long sque-e-e-e-e-e-e-ek you could get out of it? Isn't that quite like listening to some belligerent angry person for a few minutes?) Now, with air let out, even though the squeaky noise may have been painful, once the balloon is void of some of its (hot) air, it becomes more pliable. That is a common technique (of the mediator) used in mediation to work through pent up anger. Once you get past the "fingernails on the chalkboard", people often seem much less tense. The longer the release, the more is released. Once people feel like they have gotten to "have their say", the more they are open to receiving.

4.           Don't make any assumptions about anyone based on what someone else says. Don't assume that someone is right or wrong because another person says so. Don't assume that someone has to be right and someone has to be wrong if there is a disagreement brewing. Making assumptions often leads to "closing down" when you assume the person talking is going to be wrong, off base, or difficult.

5.           Remember that the smallest failure in communication can lead to the biggest disaster (truly ending up with a mountain from a mere mole hill that went unattended). For example, ignoring communications from an owner who has an ax to grind often leads to more and more communications, stronger demands, and at some point personal attacks. This also leaves the Association without any paper trail to support a later argument that you acted reasonably as a manager or the Board acted reasonably as a board. And answering gives pleasure. Have you ever taken a nasty letter and prepared an answer that is sweeter than bubblegum? It feels kinda good.

6.           Every action leads to a reaction, so make sure that your communications (verbal or otherwise) are planned so as to elicit the reaction that you want - if you approach someone when you are angry, you can expect an angry response. If you approach someone in an accusatory fashion, you will probably get an automatic defensive reaction. If you ask for personal or private information without explaining why you need it you are likely to receive a personal attack of some kind, or a slammed door "none of your d  _ n business!" kind of response. It's the difference between sending out a letter demanding that owners supply their contact information versus sending out an information card asking for means of contacting them so that you can reach them if there is an emergency relating to their property or an attempt to implement a neighborhood disaster plan.

7.           Take a breath. Count to 10. Take a walk, a break, or a breather. Before you "re-act."  It sounds so elementary - but it is so helpful in the face (literally or figuratively) of stress.

Remember: for every problem ... there is a solution.

How/When to "Spill the Beans"

One of the biggest challenges is for managers to help a board deal with everything from the mundane to a very serious situation that has come to light unexpectedly, that requires owner participation and acceptance. In the event the board finds out about some really big (and often "growing") problem that will require substantial funds to repair, it has to figure out how to proceed to (1) analyze the problem, (2) pragmatically approach the solution, and in the meantime, (3) decide out if, how, when, and how much to tell the owners. This could involve many kinds of communications.

Board Meetings: These are important and basic methods of communication with Owners. Many boards prefer to meet in secret when any matter comes before them that is difficult for any reason to talk about. If they talk in front of any of the homeowners, word might spread. Panic may ensue. The manager needs to help guide them by pointing out what, legally, they're entitled to discuss in private.  Sometimes the feedback is needed from legal counsel and it is up to the manager to determine when the question goes beyond their expertise. Do you have a law you can point to such as that in California - found in Civil Code Section 1365.05 (The Common Interest Development Open Meetings Act)? There are statutes in many of the states that are similar to public meetings laws (such as is the Act cited), which is say the boards are required to meet openly except for certain enumerated subjects. Those exceptions tend to include contract negotiations, personnel matters, disciplinary matters, matters that could adversely affect someone's privacy, or attorney - client privileged matters, and the like.

The manager generally helps set the agenda for a meeting, and often provides management reports outlining all of the action items the Board will need to consider. The manager prepares the financial reports. All of these things are communications that help the Board to do a better job. Board members are volunteers and therefore look to management for lots of guidance. Clear and meaningful communications are important.

Manager Reports For the Board: These are perhaps one of the most important communications of all. Through this reporting the manager can accomplish the following:

1. Provide an organized method for the Directors' review of and handling all matters  - especially if the order corresponds to the agenda.

2. Provide a summary of reports, bids, contracts, letters, reported problems, owner complaints, architectural recommendations, and other documents that Board members might fail to read in detail.

3. Pose fixes, possible solutions, suggestions and recommendations for the Board to consider, culling resources the manager has access to that the board might not.

4. Organize financial reporting and contain summaries, copies of bank statements, reconciliations, income statements, balance sheets and other documents that the Board members need to review.

By numbering the pages you can keep all the board members on the same page at the same time - literally.

One shortcoming often observed: the failure to segregate manager reporting on executive session qualified (confidential) items and the non-qualified items. This can lead to problems in the event there is a demand for review of association records by an owner or there is a legal claim involving litigation and discovery. It is very easy to overlook portions of management reports that deserve confidentiality when the records inspection is arranged or records are turned over to the other party as a result of a request for production in a legal proceeding when there is no segregation of the privileged information from that not entitled to the protections from discovery/review.

Minutes: Managers are often charged with writing the minutes of the meeting and this engenders quite a lot of responsibility in making these communications suitable to serve their purpose. Finding the balance between saying too much and too little is sometimes precarious. Experience seems to the best teacher. In other words, having used too many words or he/said she/said statements or individual comments can easily backfire. Minutes should include the a record of those attending (board members for a board meeting, homeowners for a homeowner meeting), whether a quorum is established, the old business and new business discussed, motions and action items, reports given at the meeting by any committee or board members, or any vendor of the association (such as the accountant, CPA, or money manager), and the motion to adjourn when required. Minutes should not include individual statements made during a homeowner forum, personal attack statements, or verbatim recitation of discussions or comments made by attendees.

Any manager that has ever been involved with a board that has been sued for defamation or discrimination by a member probably has some experience in how seemingly innocent statements made by board members that got into the minutes of the meeting can be used against the Association. As an example: "the Board members agreed that no Section 8 housing rentals would be allowed" or "the Smiths were told that this complex was not built for kids and their place is in the home, not the common area landscaping."

Some associations distribute minutes of Board meetings to the members. Some post them on Association websites. Some send them out via email. Of course you have to be careful not to "exclude" members who are not internet or email savvy. One of the easiest ways to create a contingent of complainers is to leave some group out of the loop. In California, Boards are required to make minutes of open meetings available for inspection and copying within 30 days of the meeting, if an owner asks for them (found in Civil Code Section 1363.05). Some Associations make them available for inspection or copying by owners without any mandate to do so. With the advent of and excitement over the use of the web and having web pages, many communication doors have been opened, some successfully, and some not so.

When a property sells these days in a common interest development, it is common practice for an escrow demand to include a request for 12 months worth of Association meeting minutes. Just imagine what kind of picture is painted for a potential buyer when the minutes of the Association reflect he/said-she/said statements, personal attacks, typos, poor sentence structure, disorganized thoughts, or offensive remarks. This communication has a face; it can become the "face" of the community, the outside advertisement. It is an important one and a manager should develop some skills if it is going to be responsible for painting the "face".

When a Board is confronted by angry owners about something that has been festering a long time with the owners, but is new to the Board, the Board can get defensive.  This is a time when a manager may have to step and remind the Board and the owners at the board is going to take a pragmatic approach, and as information becomes available, disseminate what it can to the members or make it available in some form such as on a web page.  This is a very important process that often occurs at the beginning of discovery of a difficult situation.  The reason it is so critical is that the board and management needs to be concerned from the very start when it is facing any very difficult issue such as that which my require a sizable assessment, to work to "enroll" the support of the members at the earliest opportunity". If and as the Board and/or management try to move forward without giving due regard to what the members deserve to know, it is the beginning of digging a hole that will eventually become very difficult to climb out of. On the other hand, if too much is said without verifiable information to back it up, it can create a panic or onslaught of unanswerable questions. And when there are no answers for the questions, trust tends to slip away.

This is another area where it is critically important to segregate executive session (confidential meetings) minutes from minutes of open meetings.

And one more thought. In California, the court in Moran v. Oso was deciding whether an owner who demanded 10 years worth of association minutes was refused, was entitled to recover attorneys fees for having to bring a legal action to get the review of the minutes she wanted to see. The court noted disdain for the Board's attempt to charge $200 in costs to dig through old association records to provide several years worth of minutes. An expert witness for the owner testified that standard industry practice was that minutes should be kept in a manner such that a Board can retrieve them more readily, and that an owner should not have to pay for the time consuming task of going through poorly organized association records as important as minutes. Keep a minute book!

Townhall Meetings: How To Use Them Effectively: A town hall meeting is a good way to communicate face-to-face with Owners and pass on and/or receive important information. It's a good way to get a finger on the pulse of the community. Some examples are to hold one during a document update- restatement project, to answer questions the members have, and to alleviate concerns. The format can be very good for presenting the "team" of professionals being used in a major rehabilitation or reconstruction project (such as the architect, contractor, banker, and attorney), or can be used to meet with neighbors in a neighborhood watch situation when there is criminal or drug activity in the community.  Of course, it can backfire if there is no planning or organization to it. If the Board and management appear disorganized or unable to handle hecklers or important questions, the meeting can be very detrimental and cause owners to lose their trust in either or both. On the other hand, a manager and an attorney with experience in crowd control can help a board prepare for the worst. Organizing the order of things to happen, setting the agenda, and giving thought as to how to keep things moving, preparing question and answer handouts - these are all things a manager can do, with the help of the Association attorney when there is the propensity for a really "lively" or "rowdy" crowd, or the need of some legal explanations of processes. Craziness and disorganization, too small a room, an overheated or chilled room, can engender distrust in the body (or manager) that organized the meeting. Do everything you can ahead of time to make sure that attendees will be comfortable, at least in their surroundings.

Letters/Packets to Owners/Direct Mailings: Obviously, letters are a means of communicating with the owners. Some people are very good writers, but the majority of people are not.  This is another skill that a manager would do well to develop.  The better writer the manager is, the better he or she can communicate ideas and helpful suggestions to the Board of Directors. Many Boards generally rely on a manager to supply it/them with form letters or suggested letters in the event of any disciplinary actions or communication with vendors about services. A manager who has really good writing skills can help write for/with the Board a summary of ongoing events or problems, in preparation for a town-hall or other meeting requiring action on the part of the homeowners. A good writer knows what kind of words create tension and engender defense of responses, and that words to use any alternative.  For example, any use of the word "but" will commonly engender resistance to any statement containing the word, but in the alternative, the use of the word "however" will instead been tend to evoke a more sympathetic understanding. Use of the word "No or "prohibited" where in the alternative positive choices can be given such as "not allowed" or cooperation is "encouraged" is another instance of "fighting words" versus "inviting" words.

Personnel Contact/Telephone Call. Some managers do not want to be bothered making telephone calls, or would prefer to have written record in any situation. In this day and age, some managers have come to expect negative reactions more commonly than positive reactions, especially if they are calling to let someone know about a pending or potential violation of the governing documents. On the other hand, I often hear owners complain that getting a letter is offensive, when the manager could have picked up the telephone and let them know is going on. Managers certainly can create a written record of telephone calls, including the date, time and place, and what was said by them, and what was said by the Owner, so adding this personal touch in many cases allows the owner to avoid the stigma attached to getting the nasty letter. Truthfully, it does not really matter how nice of a letter a manager writes on behalf of the Board, or a Board writes, even if, or maybe more-so because, the owner is guilty of the violation, the most common reaction is that the owner is either hurt, embarrassed or angry in a "how-dare-they" mindset, where a simple call saying something like "there is a report of ...." and "although you may not be aware, the association has a rule on that, ..... " and "...if you are in fact doing that you would stop ....it would resolve things without requiring a written "citation" (or whatever the Association uses).

Newsletters/Flyers These can be a great way of communicating with the Owners. Likewise, they can be idiotic and useless drivel. When prepared by people who do not have any design sense, creative genes, or writing skills, they can read like newsprint or a gossip rag. Of course, as a manager it's hard to challenge someone's "perceived" creative energy gracefully. It is a good thing, I think, that most associations defer to management to create the newsletter. Its extra work, yes, but it is also a tool that can make your job a lot easier. Let's take a look as to how that may occur. The newsletter can be used to:

(1)   satisfy statutory requirements to announce meeting dates as required in many states

(2)   broadcast committee reports, officer reports, surveys, questionnaires, emergency information requests

(3)   satisfy disclosure requirements for some things, possibly some of the state-required financial reporting requirements, news/progress reports of pending Association projects, policies of the Association, proposed rules, etc.

(4)   provide important reminders to owners about ACC requirements for making changes to property, purchasing individual insurance coverage to cover gaps left from the master coverage (if any), days to put out and bring in garbage cans, speed limits in the complex,  and important people, parking or pet rules. It can remind owners of prohibited activities, laundry room or swimming pool hours, etiquette, clubhouse use requirements.

(5)   bring the personal touch by featuring an article about an owner, board member, committee member, board/owner liaison,  or anyone that is worthy of introducing, on a regular basis.

(6)   remind owners that if there are any complaints, that there is a written form available upon request.

(7)   report on contest rules and results (such as landscape maintenance award of the month, best Christmas display, or other contests that some associations have)

Rules, Policies and Procedures.  These can be used for many purposes. They are much more likely to be read than deed restrictions, the declaration or CC&Rs, or any of the other governing documents. They can and should be simply stated, and as much as possible in the positive rather than the negative. For example, compare: "There shall be no parking in the guest parking by residents," or" Residents are not allowed to park in ...." to "Guest parking is reserved for guests. Please park your own vehicles in your assigned spaces." Or, for another example of poor wording: "Dog waste must be picked up by hand" (this is not made up, its a rule a board actually came up with) to "Dog droppings are harmful to the common area vegetation, unsightly and hazardous to health. Owners are responsible to pick up after their pets."

Rules are an important tool for tenants too. What tenant is ever going to read a stack of papers an inch thick.

Opening the rules with a paragraph like what follows sets the stage for a cooperative response, as opposed to making a new owner feel like he/she has entered no man's land:

"Please review the following items. We have adopted some simple rules based on our Association documents so that we can all do our part to make this community a better place to live. We ask for your cooperation with the following:"

Email. Email is a blessing and a curse at the same time. Some managers keep their email addresses very closely guarded. Others give it out freely to homeowner board members. It can seem overbearing to sit down and see that there are 25-50 emails waiting to be answered. On the other hand, if you had 25-50 telephone messages to return, would that be more appealing? Responding to telephone calls can take all day and still be unproductive. I both use email pretty freely. In this age of busy people, busy schedules, busy phones and voicemail, telephone tag can become a time consuming bore. Being able to get information and respond without having to wait to talk to someone can really minimize wasted time. On the other hand, sitting at the computer is a very passive means of communicating and does little to build relationships. Do you need to build relationships ... or get business done. That's a question that could bring mixed responses. Everyone has their own management style and either can work for specific reasons.

Email can be very dangerous. Emails are most likely discoverable in any lawsuit situation so care must be taken to make sure that damaging statements, admissions and offensive, legally actionable comments are not made. Homeowners (and managers) have to be constantly reminded to attach confidentiality statements to emails they want to "try" to protect from eventual discovery in the event there ever is a legal action where someone demands review or production. This comes naturally to attorneys because attorneys are trained to remember to mark anything confidential they intend to be confidential, like letters. But neither board members nor attorneys have this kind of training, generally. But even with a confidentiality statement - discussion over email of what kind of a person Smith or Jones is or how much or how little they are liked can come back to haunt a Board or manager. Calling someone a drunk, a crook, or carrier of a contagious disease can lead to an indefensible defamation claim (unless you can prove the truth of the defamatory statement). Discriminatory statements can lead to "big bucks" lawsuits. Talking about owners for all the wrong reasons is a common occurrence.

Even without the threat of any litigation, emails sent in haste can prove to be a great embarrassment. Reacting in anger without a cooling period can lead to very hard feelings and alienation. Hitting the wrong button and sending something meant for one person to another can constitute a huge faux pas. Say you are an attorney and you have your client contacts and the opposing attorney next to each other in the address book. So you compose a letter for your client telling them of potential problems caused by their actions, and then hit the wrong address book address and the letter goes to the attorney instead. A very careless and possibly harmful "faux pas". Say you start to compose a message, and then decide the better of it, and instead of closing the message you accidentally hit send instead. Say that you hit "forward" to send someone a message that you have just read, and do not realize that there is a long string of emails attached to and from the person who sent the message to you, or an embarrassing board dialogue attached. Board members seem often to have no conscience about what they say in emails.

With email, you have to be very careful.

Websites. Websites can be a blessing and a curse also. Associations are finding it very helpful to have a website for posting documents, notices, suggestions, rules, and important messages. Posting recorded documents and filed articles of incorporation are posting of public records, not a problem. But posting of bylaws, rules, minutes of meetings, and posting of socials, townhall meeting subject matter, etc., constitutes posting of private information and if there is no effort to protect entry, can lead to problems. Associations that open up the website to "chatting" by Owners or residents sometimes wish they didn't. If Owners are all respectful, honest, and kind people, there probably won't be a problem. But when vindictive, mean spirited, unhappy residents get into the chatting mode, things can go downhill fast. The "chat" room can become a place to criticize, ostracize and condemn.

Last but not least,

Presentation of a Ballot and Ballot Package on An Important Issue.  Sending out a written ballot without any information attached, or conducting an election at a meeting without a full explanation of what people are voting on can turn out to be an exercise in futility. A well-drafted, organized communication with a ballot package can make the difference between success and failure in the voting measure. Make sure your ballot is legally correct for your state. California has specific requirements in the Corporations Code. Basically, the information needed is the voting measure, an opportunity to approve or disapprove it (giving one possible answer only is not wise), names, signatures, dates, and the voting requirements, such as how many votes it takes to approve the measure.  The materials leading up to the balloting can be just as important. Owners will generally balk at approving a very large assessment if they have no historic documents setting the stage. Even if you have arranged a town hall meeting, you need to make sure that you have also prepared a fully informative package that can be given out at the meeting and/or mailed to everyone, or at the very least, those that did not attend. Some Owners may even crow loudly claiming a lack of history when there has been a considerable course of communication. Of course, it is better to be in the position of having sent out communications along the way as things evolved, even if the Owners are not reading them. At some point, the timing, clarity, frequency, and completeness of disclosures might become very important.

copyright 2006, Beth Grimm, all rights reserved

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.