WRITTEN BY BENNY L KASS
Question. We live in a nice community, but every so often someone breaks one of our rules. Sometimes the infraction is minor — such as washing their car on the public street. Other times, the violation is more serious, such as yelling, arguing and even threatening people. The violators may be unit owners or tenants. Can you outline in general terms what our Board of Directors can do to curtail these various infractions?
Answer. In my years of representing community associations, I have developed a long list of “Ps” of community living, including pets, people, presidents, prostitutes, parking, pianos, pigs (vietnamese), pools, psychiatrists, portals, plumbers, etc.
Let’s address the most serious matters first. Whether the person creating the problem is a tenant or an owner, if criminal conduct is involved, call the police immediately. Neither the Board of Directors nor management is competent to– nor should — handle such matters. More importantly, you do not want to be involved in obstructing the authorities in their investigation.
If the problem is not criminal, but involves an infraction of your association documents or your rules and regulations, we then have to determine if the alleged perpetrator is a unit owner or a tenant of an owner:
1. Owner: Here, the situation is relatively simple. I assume your association has rules and regulations, and that you also have the authority to institute fines for any such violations. If you do have this authority, it is strongly recommended that you implement these procedures immediately — consistent of course with the legal requirements of your state condominium law. Some condo laws — such as in the District of Columbia — require that before you can issue a fine, you provide the alleged violator with the opportunity to appear before the board (or a committee appointed by the board) to present any defenses. Interestingly, all the board has to do is provide that opportunity for a hearing; if the alleged violator does not show up, the board can still issue a fine.
Make sure the alleged conduct does in fact violate your rules (or your association’s documents). If you have any uncertainty, discuss the matter with your association attorney.
Once you are satisfied you have a strong case, advise the owner that the Board (or an authorized committee) will hold a hearing, for the purpose of giving the owner an opportunity to defend his or her position. The owner can be represented by counsel at the hearing if he or she so desires. The hearing is informal and can be held before a panel of board members or other owners selected and approved by the board.
If the Board (or the committee) determines the owner has violated the governing rules, the Board has a number of options at its disposal. It is important to note that these comments are general in nature; some association documents may not permit some of these options or may even have others:
a. fine the errant owner; b. suspend voting; c. sanctions, e.g., the owner cannot use the Association amenities — the pool; d. take the owner to court seeking declaratory or injunctive relief; or e. have the owner sign a statement (an agreement) to the effect that the problem will not happen again. Such statement should include language spelling out what happens should the situation occur again.
2. Tenant: Many associations over the years have adopted — and implemented — a requirement that each owner and each tenant sign a “lease addendum”. Such a document allows the association to step into the shoes of the owner and take all appropriate legal action against the tenant if there are violations created or caused by the tenant. If your association does not have such a “lease addendum” policy, again, it is strongly recommended that you immediately adopt such policy.
On the other hand, if the tenant did not sign a lease addendum, you may find it more difficult to take legal action against him/her. However, you should follow the same procedures as discussed above (concerning owners) with the owner receiving copies of all the notices and documents mailed to the tenant. In some cases, the Board may need to explain to the tenant that this is a community association, and that everyone is expected to honor and follow certain rules and regulations. Often, I have found that tenants are not aware of the applicable rules, and welcome the opportunity to learn about them.
If the tenant shows no concern — or indeed is hostile to your overtures — advise the tenant and owner that the Board has to follow the rules and that legal action will be taken if the alleged violations do not cease.