By Tim Moeller, Moeller Graf, P.C.
Over the past year we have been required to spend much more time at home. During that time, some of us have been attempting to tutor our children through virtual schooling. We have cancelled vacations, graduations, and other important events. These stressors have not brought out the best in everyone. Many board members, and every manager, have tales of community members acting less than affably. Perhaps they were upset for not having access to the pool during a pandemic or for not getting elected to the Board. Perhaps they are experiencing financial hardship or experiencing difficult times for other reasons. In any event, when bad behavior arises, we are routinely asked if it rises to something that the Board can or should address. At what point does the community association’s board of directors become the etiquette police?
“Harassment” is defined in Black’s Law Dictionary as “words, gestures, or actions which tend to annoy, alarm, or abuse another person.” To annoy, Black’s suggests, “is to disturb, irritate or cause discomfort. Abuse consists of insulting, hurtful or offensive wrongs or acts.” Ultimately, whether someone was harassed will depend on whether the targeted individual felt intimidated or threatened, not whether the angry individual intended their actions to be abusive or intimidating.
Criminal harassment is statutorily defined in Colorado Criminal Code C.R.S. § 18-9-111 and is known as Kiana Arellano’s law. In summary, criminal harassment includes, but is not limited to, an individual having an intent to harass, annoy, or alarm another person and with that intent to harass, then doing one or more of the following: striking, shoving, kicking or otherwise touching a person or subjecting them to physical contact; or in a public place, directing obscene language or making an obscene gesture to or at another person; or following a person in or about a public place. Criminal harassment may also include initiating communication with another person anonymously or otherwise in a manner intended to harass or threaten injury to body or property or making any obscene comment, request or suggestion or repeatedly insulting, taunting, or challenging an individual in a manner likely to provoke a violent response.
The association should attempt to deal with actions constituting harassment if the actions are a violation of the association’s governing documents. However, the Board might also consider contacting the local authorities to address the situation.
What is often referred to as “civil harassment” is more about the remedy than the conduct asserted and usually involves the filing of a complaint in court against the abusive individual seeking damages or injunctive relief for a violation of the association’s governing documents. Seeking injunctive relief equates to asking a court to restrain a party from doing certain acts or requiring a party to act in a certain way. A community association, not being an individual, must show that the individual in question has violated the governing documents of the Association.
Some governing documents contain a provision allowing its members the right to quiet enjoyment of their property. Others contain a provision prohibiting nuisances. It is not uncommon for boards, managers, and other members to summarily conclude that a bad actor in the community is a nuisance and seek punishment based on that provision in the governing documents.
However, typically, the law defines a private nuisance as an unreasonable or unlawful use of one’s property in a manner that substantially interferes with the enjoyment or use of another individual’s property. You can find examples of this in cases where odor, noise, or vibration from one property negatively affects the neighboring property. Harassment does not fall nicely within the constructs of nuisance.
Therefore, while there may be some general provisions found in your governing documents, it may be helpful to amend your governing documents to include specific provisions against the harassment of persons within the community, to include managers and vendors. While a rule pertaining to harassment is helpful, having language in the association’s declaration is preferred as the court would likely give more deference to a provision that had been adopted by the vote of the entire community. Be warned, though, that this will obligate the association to enforce the anti-harassment clause, which can further mire the Board and management in being what may feel like the etiquette police for the community.
An amendment to the governing documents may address such issues as abusive language, use of profanity, taunting, threatening others, abusive and excessive contact (including emails, texts, and phone calls), and stalking.
Additionally, associations experiencing harassment issues should consider placing language in its policy pertaining to meetings as well as in any meeting code of conduct that may be provided at the outset of a meeting.
Once these measures are in place, the expectations within the community become clear, as do the parameters for when and how the Board must step in and act to enforce the governing documents of the community. Start with the conduct. Maybe it is criminal. If so or if not, the Board should then see if there exists a violation of the governing documents.
Tim Moeller is a co-founder of Moeller Graf, P.C. and has been practicing community association law for over 20 years in Colorado.
