ANNOYANCE, HARASSMENT, COMPLAINT OR THREAT: WHEN SHOULD BOARDS ACT AND WHAT SHOULD THEY DO?
Remember when people would ask in the middle of a heated dispute: “Can’t we all just get along?” No one asks that question very often anymore because the answer clearly is, no. We can’t get along. We can’t seem to behave with even moderate civility. Debates (loosely defined) in Congress are only one example. Just look at the reports of offensive, often violent behavior on airplanes, in restaurants, at Little League games and on the highways. It seems people experience road rage today simply walking around! These social ills are endemic, so it shouldn’t be surprising to see them reflected in condominium communities, where owners seem to be frequently at odds with board members, managers, and each other.
These conflicts don’t usually turn violent, fortunately, but they do trigger complaints about “harassment,” and questions about how to deal with it. What constitutes harassment? The old definition of pornography - “I can’t define it, but I know it when I see it” - comes to mind. But we can do better than that. In most cases, harassment describes repetitive actions that are persistent and offend, upset, alarm or intimidate others.
Sending the board hundreds of e-mails, accosting board members in the parking lot, constantly berating owners, knocking incessantly on their doors – all of these actions arguably constitute harassment. Objecting angrily to a board decision and vowing to oust board members because of it does not. The critical defining characteristic of harassment is that it makes the targets feel threatened or intimidated.
Code of Conduct
To ensure orderly, productive meetings, many association boards have adopted formal codes of conduct identifying behavior – name calling and interrupting others for example - that is not allowed. We think associations should adopt and incorporate in their governing documents similar codes of behavior for owners, making it clear that harassment in any form is prohibited.
This written policy puts owners on notice that there are behavior boundaries they must respect. Equally important, it establishes a legal foundation on which boards can base enforcement actions to address harassing behavior. This is one model you might consider:
“Members and other residents shall not engage in any abusive or harassing behavior, either verbal or physical, or any form of intimidation or aggression directed at other members, residents, guests, occupants, invitees, or directed at management, its agents, its employees, or vendors.”
A Minnesota appeals court found that an association had the authority to adopt a behavior code similar to this, because the association’s governing documents and state law authorized the board to regulate behavior that endangers the health, safety or well-being of residents, and harassment, the court agreed. We think Massachusetts courts would agree.
Boards will typically encounter two categories of harassment: Harassment targeting the board, board members, vendors or other agents of the board and harassment targeting individual owners. In all cases, if an owner is violent or threatens violence, call the police. Don’t worry about overreacting. It is better to over- than under-react to the potential for violence. And having a police report on file can be helpful if you eventually initiate legal action against the offending owner.
Owners vs. the Board
If you are dealing with non-violent harassment targeting the board, its members or its agents, we suggest a tiered approach that becomes increasingly harsh, as needed.
Determine whether the behavior is harassing or just annoying. You will usually know harassment when you see (or experience) it, but an opinion from your association’s attorney can be helpful.
Start by listening. The offending owner may be a bully whose intention is to intimidate, but some people behave badly because they have – or think they have – a legitimate concern that hasn’t been addressed. If you address the underlying concern, or at least demonstrate serious interest in it, the harassment may end.
Don’t feed the monster. If an owner is burying the board under e-mails, telephone messages and demands for information, ”ghost” him. You don’t have to respond to all of those messages; you don’t have to respond to any of them. In extreme cases, if the deluge continues, you might inform the resident, or have your attorney inform him/her, that absent an emergency, the board and/or manager will no longer respond to written communications or telephone calls. Owners who know their emails and voice mail messages will be deleted immediately may stop sending them. You can also make the harassing behavior more difficult, by directing the owner to discuss the issues in a meeting with the board. Most people find it a lot easier to be offensive in an e-mail than in person.
Send a formal notice. Have your attorney write a letter stating that the owner is violating the association’s anti-harassment policy (illustrating why you want to have one) and noting that if the behavior persists, the association may pursue available remedies, including fines and litigation.
Fine the owner and/or revoke privileges, consistent with what the association’s governing documents allow.
Seek a “Harassment Prevention Order (HPO)”. This legal tool, created by a 2017 Massachusetts statute, provides a legal remedy that is more accessible and less complicated than a restraining order, which courts are often reluctant to issue unless violence or the threat of violence is involved. An individual seeking an HPO is required only to submit a single affidavit providing evidence of three or more “acts of willful and malicious conduct aimed at a specific person” that are “committed with the intent…[and in fact do] cause fear, intimidation, abuse or damage to property.”
Owners vs. Owners
If owners are harassing other owners, the strategies for dealing with that type of situation are similar to those that apply to the harassment of the board, the manager or other agents of the association. But owner harassment is complicated somewhat by Housing and Urban Development Department (HUD) rules, which make associations potentially liable for behavior by third parties (including other residents) that creates a “hostile environment,” if the association “knew or should have known” about the harassment and failed to take steps to prevent it.
Among other concerns, the HUD rules don’t set a particularly high legal bar for harassment claims. Individuals must demonstrate only that the harassment occurred; they don’t have to show that it caused physical or emotional harm. Also, the harassment doesn’t have to be extensive or prolonged; a single act of harassment is sufficient to support a claim.
The HUD rules apply only to individuals covered by the Fair Housing Act, which prohibits discrimination against members of protected classes. But this doesn’t provide much legal shade for associations. There are many protected classes (race, religion, gender, age and sexual orientation among them), and many people who can claim to be a member of one of them.
How should boards handle owner vs. owner harassment claims? In a word, carefully. First verify the complaint. Obtain copies of any abusive letters e-mail messages or tapes of abusive phone calls. Have third parties who heard harassing comments or witnessed harassing behavior verify it. With that documentation in place, the board should follow most of the steps outlined earlier for dealing with harassment against board members, with this important exception: Don’t ignore it. That is a notably bad idea given the association’s potential liability under the HUD rules.
It Is the Board’s Problem
Because of the HUD rules, boards should not simply instruct owners embroiled in a dispute to work it out themselves, because it is no longer true that boards have no obligation to intervene. You can and should ask what actions the owner complaining of harassment has taken on his/her own behalf and encourage owners who have not pursued those individual remedies (seeking a harassment prevention order, for example) to do so. Bear in mind, however, that an owner’s failure to act will not eliminate the association’s obligations or potential liability under the HUD rules, which require housing providers (including condominium associations) to do everything in their power to combat harassment against a resident. What does that mean?
First, it means boards should respond promptly to a harassment complaint; that is a specific requirement of the HUD rules. Second, it means the board should do anything state law and the governing documents authorize it to do, including pursuing court action, if necessary, to address the harassing behavior.
We suggest these steps:
Investigate the complaint.
Ask the individual accused of harassment to discuss the issue with the board.
Offer to mediate the dispute.
Have the board’s attorney send a letter to the offending owner describing the offending behavior, Insisting that it must stop and threatening legal action if it continues.
Impose fines or other sanctions.
Help the targeted owner obtain an HPO, if necessary.
Document all the intervention measures the board takes to demonstrate its good faith efforts to deal with the problem.
These steps won’t prevent a harassed owner from filing a Fair Housing Act complaint against the association, but they will strengthen the association’s ability to defend against it.
Contact Mark Einhorn or Pamela Jonah for further assistance on complaints, annoyances, threats or harassment.