By Tim Moeller, Moeller Graf, P.C
As a community association attorney over the last 20 years, I have been tasked with handling hundreds of “neighbor to neighbor” disputes. These disputes come in many flavors. Some believe that their upstairs neighbor is tap dancing on the tile floor with ski boots in the middle of the night; some believe that Snoop Dogg himself must be living below them due to the amount of pot smoke drifting into their unit; others fight belligerently over dog poop. While the nature of the disputes vary wildly, one common thread runs through these types of disputes – one or more of the owners desire to have the community association step in to make their problem disappear.
Associations, through their Boards, are reticent, at best, to intercede in what appears to be a personal dispute between two homeowners. After all, why should they spend the money of the entire community to deal with some neighbors who can’t seem to get along? Furthermore, are they even obligated to step into such a quagmire?
While it is easy to wipe our hands of these types of disputes and demand that the homeowners handle their own petty squabbles, community associations must not immediately ignore such complaints. Ultimately, if there exists a violation of the governing documents, which includes the rules and regulations, the Association has some level of obligation to enforce those governing documents.
A Colorado Court of Appeals case gave us some direction on the obligation of the community association to step into a dispute. The case arose from a homeowner who insisted on picketing within the community complaining that a builder refused to do warranty work on the homeowner’s new home. The HOA was asked to prevent the homeowner from picketing. However, no action was taken for an extended period of time.
Eventually, the builder grew tired of waiting and filed a lawsuit against the homeowner. As you can guess, the HOA and its management were roped into the case as well. In the appeal it was argued, among other things, that the HOA owed a duty to the builder, who was also a lot owner, to enforce the restrictive covenants.
The appellate court ruled that covenant enforcement may require the exercise of discretion as to both the timing and the manner of enforcement. In other words, the Association is obligated to enforce its governing documents through the exercise of reasonable business judgment. While this was not a neighbor to neighbor dispute in the context that we normally see, we learned that the community association has an obligation to enforce its governing documents through the lens of the Board’s business judgment.
Enforcement may fall into many categories. Many covenants contain general nuisance provisions that may require the community association to get involved with complaints pertaining to smoke intrusion and noise, for example, if they are sufficiently harmful to the enjoyment of neighboring units. If the governing documents contain covenants or rules pertaining specifically to a matter to which a complaint has been levied, the Board must take the complaint seriously and make its best business judgment as to whether it must intervene. In some instances, this judgment call should be made with the assistance of legal counsel.
Outside of violations of the governing documents, some complaints are merely about bad actors in the community who may be bullies or just plain mean. Certainly, these types of complaints can be relegated to the neighbors to work out . . . or can they? Some community associations may find it alarming to learn that HUD, in 2016, issued a final rule that creates liability for housing providers for occurrences of “hostile environment harassment.” The rule prohibits hostile environment harassment because of a resident’s protected class. It imposes direct liability on housing providers more broadly for discriminatory practices. The impact of this rule is the possible imposition of direct liability on the community association for the conduct of third parties if the association knew or should have known of the discriminatory housing practice, had the power to correct the practice, and failed to take prompt action to end such practice.
One example of the affect of this Rule on community associations is found in a case out of Washington D.C., where the condominium association paid $550,000.00 to an African-American homeowner to settle charges that the association did not go far enough to protect her from racial and sexual harassment. The association eventually wrote letters to the harasser, but ultimately failed to stop the outrageous and harassing behavior. The facts in the case paint a horrible picture, but suffice it to say, Boards should take seriously complaints of discrimination within the community, even if it smacks of a neighbor to neighbor dispute.
Tim Moeller is one of the founding partners of Moeller Graf, P.C. Tim currently serves on the Colorado Legislative Action Committee for the Community Association Institute.
1 Colorado Homes, LTD v. Loerch-Wilson, 43 P.3d 718 (Colo.App. 2001).
2 Reeves v. Carrollsburg Condominium Unit Owners Assn. 1997 WL 1877201.
