DAVE MASON'S 1977 soft rock hit “We Just Disagree" has a message that should resonate for community association board members and managers. You might laugh, cringe, have no idea what I'm talking about, or get the song stuck in your head, but the chorus goes:
So let's leave it alone 'cause we can't see eye to eye. There ain't no good guy, there ain't no bad guy, There's only you and me and we just disagree.
It's true. Residents in community associations won't always see eye to eye on every issue, and that's OK. We simply aren't wired to agree on everything. However, sometimes, a simple disagreement rises to the level of conflict, which can impact the entire community.
As a community association attorney and litigator, I believe the path to reducing conflict in associations begins with proactively and intentionally acting to avoid the disagreements, issues, and other frustrations that ultimately lead to conflict. These best practices should help.
CONSISTENTLY AND UNIFORMLY ENFORCE
In every community association, the board has a fiduciary duty to enforce the rules and regulations for the benefit of every member. This responsibility is not voluntary.
Frequently encountered enforcement issues include pools, trash, outdoor elements (architectural control), parking, pets/animals, curtains, outdoor storage, maintenance, and playgrounds. Enforcing the governing documents with consistency and uniformity—regardless of the owner who is the subject of the enforcement— will greatly reduce the possibility of conflict in the community as well as potential liability for the association.
How does an association do this?
Actually enforce the rules and regulations. It seems too obvious, but several communities ignore their documents and enforcement actions.
Don't play favorites. A board must enforce its rules and regulations equally against every owner. It doesn't matter whether the owner in violation is the nicest person in the community or a bully. Picking and choosing some, but not all, owners as it relates to enforcement will certainly lead to conflict.
Avoid bad decisions. Let's not sugarcoat it. Some community leaders make bad decisions that lead to inconsistent enforcement. If a bad decision has already been made, a board should recognize it and reverse course. Boards should adopt and implement an enforcement policy and stick to it.
Ensure due process is provided. In Pennsylvania and many other jurisdictions, the statutes provide an association with the power to levy reasonable fines for violations of the declaration, bylaws, rules, and regulations after notice and an opportunity to be heard are provided. Fining an owner or engaging in a related enforcement action prior to providing him or her with notice and an opportunity to be heard may lead to a successful lack of due process.
Stop unofficial enforcement. A board member, committee member, or some other person with actual or apparent authority to act on behalf of the association should not tell an owner to do something as it relates to the rules and regulations without the consent (vote) of the entire board of directors.
For example, a landscaping committee member cannot unilaterally advise an owner to remove a tree because the committee member believes the tree is in violation of the covenants. The owner might perceive that the committee member has the proper authority. If the owner actually removed the tree as a result of the committee member's directive, and the tree didn't have to come down, conflict would likely follow.
Boards must be cognizant of the propensity for this type of activity and must properly educate and train all community leaders and volunteers to stop unofficial enforcement.
PRACTICE GOOD GOVERNANCE
Good governance means that the board makes good decisions for the benefit of the community and that it undertakes this process correctly. To clarify a bit, in Pennsylvania and many other jurisdictions, the business judgment rule provides that board members must make decisions within the scope of their given authority, in good faith, using ordinary care, and in the best interest of the association (i.e., not in their own best interests).
The simple process of making decisions correctly will likely serve to reduce conflict. Owners will be less apt to contest board actions and initiate litigation.
COMMUNICATE WITH RESIDENTS
An issue that has always caused strife and conflict involves owners feeling that the board doesn't listen to them on issues big or small.
Boards should make considerable effort to listen to owners. Sometimes, they just want to be heard, and sometimes, they bring great perspective that boards need to consider.
In jurisdictions that don't require open board meetings, such as Pennsylvania (absent requirements in the governing documents, of course), my recommendation would be to make some of the board meetings open to owners. For example, if there is a board meeting every month, the board could offer to make 25% of the meetings (three per year) open (even if they are virtual).
This step goes a long way toward the board and owners actually getting to know one another, which will likely lead to reduced conflict.
TAKE NEIGHBOR DISPUTES SERIOUSLY
We've discussed conflict between the association and owners. What about conflict between owners? Neighbor against neighbor disputes have been around since people have actually lived next to one another.
An association may choose to act as an intermediary between owners to facilitate harmony, avoid conflict, and perhaps reach a potential resolution. In fact, these steps may be necessary under the Department of Housing and Urban Development's 2016 rule entitled, “Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices under the Fair Housing Act."
The rule explains that “(w)hether unwelcome conduct is sufficiently severe or pervasive as to create a hostile environment is evaluated from the perspective of a reasonable person in the aggrieved person's position." In the association world, this means that a run-of-the-mill neighbor against neighbor dispute also may trigger alleged violations of the Fair Housing Act so long as a member of a protected class (i.e., race, color, national origin, religion, sex, gender, familial status, or individuals with disabilities) is making the claims against his or her neighbor.
An association's Achilles heel as it relates to this issue is the fact that the rule was revised to clarify that a housing provider (including a community association) is liable under the Fair Housing Act for third-party conduct (including the conduct of a unit owner) if the housing provider knew or should have known of the discriminatory conduct, has the power to correct it, and failed to do so. The rule provides that a community association would be liable for negligence for failing to take prompt action to correct and end a discriminatory housing practice by a third-party of which it knows or should have known was occurring.
HUD explains that a community association generally has the power to respond to third-party harassment by imposing conditions authorized by the association's documents or by other legal authority. HUD further explains that community associations regularly require residents to comply with bylaws and rules through notices of violations, threats of fines, and fines.
HUD submits that it “understands" that community associations may not always have the ability to deny an owner access to his or her dwelling and that the rule “merely requires the community association to take whatever actions it legally can take to end the harassing conduct." Thus, if an owner allegedly harasses another who is a member of a protected class under the Fair Housing Act, and the owner who is the subject of the alleged harassment advises the association, the community appears to have a duty to investigate the issue and affirmatively get involved in some manner to try and stop the harassing conduct. If the association fails to do so, it may face liability for violating the Fair Housing Act.
In every community association, the board has a fiduciary duty to enforce the rules and regulations for the benefit of every member. This responsibility is not voluntary.
GOVERN WITH EMPATHY
One thing we've learned about the COVID-19 pandemic is that real people face real struggles in life. People were, and still are, on edge.
In an association, the pandemic impacted owners' jobs, which impacted their ability to pay assessments. Other examples of COVID-19-related impacts include owners' delay or inability to maintain their properties due to financial issues, and seemingly every association's tough decisions related to running, operating, and opening amenities such as pools, gyms, tennis courts, lakes, and clubhouses.
When speaking to my clients about these issues, I advise that they should govern with empathy and utilize emotional intelligence, in addition to good faith and due diligence. I often repeat the mantra, “Don't leave empathy at the door when making important decisions." Many associations take that advice to heart.
I believe that COVID-19 and all of the challenging events of 2020 changed our outlook on the concept of community." I also believe that we took “community" for granted.
I know I see it, and I believe that you do as well. Community begins at home, and we had a year at home to closely examine this concept in our own lives. We are all in this together. We must realize that we don't live on an island by ourselves, and, in 2021, we should prioritize creating a safe and peaceful “community" where we treat others as we want to be treated and where we love our neighbors as we love ourselves.
Finally, if boards govern with some level of empathy during this time period, it will serve to avoid conflict now and set the tone for when we get through this difficult time. I believe we'll see a renewed concept of “community" in our associations.
Edward Hoffman Jr. is the founder of Hoffman Law LLC, a community association law firm with offices in Pennsylvania. He is a fellow in CAI's College of Community Association Lawyers, the current chair of the CAI Keystone Chapter's Legislative Action Committee, and is a member of the Chapter's Poconos Regional Council. He is licensed to practice law in Pennsylvania and New Jersey. ed@hoffmanhoalaw.com