Recently on a national HOA/condo list serve, a community association professional lamented that civility has fallen in HOAs and condos and asked about how to deal with homeowners who regularly bully or harass.
Based on numerous instances, our firm’s attorneys would agree that there has been an increase in the number of “in your face” owners, whether that behavior is directed at other owners, directors, or the community manager. While there was a discussion online of “changing the community’s rules,” such language would not generally fly in North Carolina or South Carolina due to case law and statutes (but might work in other states). And amending the restrictive covenants/declaration can be overwhelmingly difficult (and such wording might not be legally supportable there either). FYI, CAI’s Common Ground has run some articles on this specific issue, such as this article on “Bullys, Browbeaters and Boors.”
As a preface, keep in mind that associations don’t tend to get involved unless there is a violation of the governing documents (or possibly Fair Housing discrimination, but that is a different blog–see Community Associations May Have a Duty to Address Neighbor-to-Neighbor Discrimination). HOAs and condo can’t simply tell residents how to treat each other when they are not on association common property (i.e., the board has greater ability to regulate owner behavior on the common elements.) While it might be tempting to get involved, two owners with a long history yelling at each other in their yards may simply not be a matter the association should spend time and owners’ funds on.
Because circumstances matter, there is no one-size-fits-all answer. For instance, an association will likely have a higher obligation to do something if bad acts happen on the common area or at an association meeting than if two owners are yelling at each other between their private yards. Even then, if one of the yelling owners is the association president or board member, the association may have responsibilities. That’s why instances of bullying or harassment should be brought to the attention of the association attorney as quickly as possible.
With that said and recognizing the correct response my vary depending on what happened, where it happened, why it happened, and who it involved, here are some general recommended gradations on what can be done about inappropriate behavior:
- Talk about general concerns about behavior at a membership meeting or in community communications (which may involve the lawyer explaining association/owner obligations and what a community association does and does not do, as part of owner education).
- Have the offending owner come to a board meeting or visit with the owner, sometimes with the assistance of a mutual connection (which stresses the whole “community” aspect). As a reminder, in North Carolina state statute provides that HOA and condo boards “at regular intervals” must provide owners an opportunity to attend a portion of a board meeting to speak about issues or concerns.
- Have the association (through its community manager) send a letter or have the attorney send a letter to the owner about what behavior is or is not acceptable.
- If the behavior violates enforceable provisions of the governing documents, begin the enforcement process.
- If necessary, let the owner know that communications can only be in writing with the Board or community manager (and refuse to engage individually or otherwise).
- If necessary, have the attorney send a letter stating that all communications must go through the attorney.
- If the behavior rise to the appropriate level, seek a restraining order.
- If the behavior rises to the appropriate level, pursue criminal charges for battery or assault (one is verbal, one is touching).
While this may seem a long list with a lot of steps, it’s truly for the unreasonable member or owners with true issues. Our goal as association attorneys is to try and de-escalate aggressive or unacceptable behaviors. Or to get underneath the root cause of what’s going on, which can sometimes be done through the mediation process (which North Carolina’s CAI Chapter offers). Because no matter what is done, at the end of the day this will still be a community of neighbors that almost certainly will be living next to and have to deal with each other. And, far too often, we find that escalating the situation plays into the owner’s argument about the “mean” board or manager, or simply gives the member some type of enjoyment. To paraphrase the quote from George Bernard Shaw: “Never wrestle with a pig. You’ll both get dirty, and the pig likes it.”