By Tim Moeller, Moeller Graf, P.C.
One of the beautiful things about living in a community is the different perspectives, life experiences, and attitudes that the residents bring, which can contribute greatly to the quality of life for all. However, sometimes it is these differences that tear us apart. Within most communities, there will be one or more individuals who may not share the common goals of the community at large. Some of these types of individuals will actively seek out confrontation and negativity. These difficult individuals seem to thrive on pushing and invading reasonable boundaries and are typically very outspoken regarding their view of the management of the association. While not experts in civility, these individuals are experts at criticizing and pinpointing the errors of others, especially the Board and/or the manager. They will interrupt and make personal attacks and unfounded allegations.
By now, you may be picturing in your mind an individual that has checked all of the boxes of poor behavior mentioned above. So how do we best deal with these individuals to avoid unnecessary conflict and disruption to association business?
Here are some suggestions for dealing with the difficult homeowner:
- Update your policy regarding conduct of meetings. You may announce the meeting procedures at the outset of meetings as well as by notifying members ahead of time in a newsletter or in the meeting notice for member meetings.
- Enforce the conduct of meetings policy uniformly for all members, not just against the difficult individual. Let them know that their behavior will not be tolerated, but make sure that the rule deals with similar conduct in a similar manner.
- Host a homeowner forum at the meetings with an established and enforced time limitation for speaking on any matter. When the speaker’s time is up, don’t start screaming at them to sit down and shut up, but rather, nicely inform them that they have reached their time limit and that they need to wrap up their statement. If they continue to ignore the time limit, kindly remind them that they are taking time from other members and that you will now have to move on to other homeowners. If you don’t have to enforce a time limit because there isn’t any significant time constraint, try to allow the person reasonable latitude to speak freely and make their points.
- Establish control such that individuals are not allowed to interrupt board meetings by speaking out of turn and personally attacking others.
- Respond in a regulated manner without yelling. Refrain from trading insults and allegations. Don’t carry on the battle over social media.
- Utilize basic parliamentary control by knowing how and when you may table a motion or refer a matter to a committee. Also, recognize that parliamentary rules are not to be used as weapons to disrupt free debate but are to be used to provide a fair process for all attendees.
Unfortunately, it is common for our office to be contacted about homeowners who are “harassing” one or more board members or the community manager. In fact, this seems to be more and more commonplace. At what point does lousy behavior rise to the level of harassment? After all, it is not against the law to act poorly or to have bad manners.
Colorado law defines criminal harassment in C.R.S. §18-9-111. For harassment under this statute to exist, there must be “intent to harass, annoy or alarm” another person in certain ways, including, but not limited to i) touching (striking) them; or ii) in public, directing obscene language or making obscene gestures to another person; or iii) following a person in or about a public place; or initiating communication by telephone, text, email, or other means in a manner intended to harass or threaten bodily injury or property damage, or iv) making any comment, request, suggestion, or proposal that is obscene; or v) repeatedly insulting, taunting, challenging, or making communications in offensive coarse language to another in a manner likely to provoke a violent or disorderly response.
Harassment as set forth above is a class 3 misdemeanor (unless the harassment pertains to race, color, religion, national origin or disability, which is a class 1 misdemeanor). So, while the association may contact law enforcement should it deem that the behavior of the individual has risen to criminal harassment, there may also be other ways to head-off the problem using the association’s existing governing documents.
Most covenants contain provisions pertaining to nuisances. While we can agree that bullies and difficult people seem to be a nuisance to all who come in contact with their abhorrent behavior, a legal nuisance is typically considered an activity which arises from unreasonable, unwarranted or unlawful use by a person of his/her own property, working obstruction or injury to the right of another such as smoke, odors, noise, or vibration.
Therefore, we may look to whether there exists more specific language in the covenants regarding harassing behavior. Short of amending your covenants to contain such language, broad language often exists in the covenants pertaining to “quiet enjoyment” which has nothing to do with noise but can pertain to harassment. Sometimes, a strong letter from the association’s attorney will be enough of a check on the bad behavior to alleviate some of the issues. This may escalate to the levy of fines or other specific sanctions. If this doesn’t work, the Board may discuss with its legal counsel the possibility of obtaining a civil restraining order in court or an injunction against their bad acts.
Ultimately, if you spend enough time as a manager or board member, you will eventually run into an individual who exhibits bad behavior. Do all that you can to diffuse the problem, but don’t let the issue get out of your control. Take whatever reasonable action is necessary to maintain control of the association and attempt to promote civility for the benefit of the homeowners that truly appreciate your time and effort spent on behalf of the community.