Published on: December 28, 2018
I am often asked what a board can do about a unit owner whose bad behavior is constantly disrupting the community. Whether it is a unit owner who regularly yells at his neighbors, or one who, after a board issues him a violation notice for an infraction, starts to retaliate against some or all of the board members. This type of behavior causes legitimate fear in the community and the board is often expected to act.
The initial consideration is whether a board should get involved at all. Clearly, if a board member is being targeted because of something he or she did in her capacity as a board member or one owner is causing problems throughout the community, the board should get involved. But, if only one owner complains about another, does the board have to act? Recent HUD guidelines make clear that the board could be responsible for failing to stop harassment. The board should at least investigate the issue.
If the board is going to act, finding the appropriate solution can be very difficult. First and foremost, if an individual owner or board member ever feels like he or she is in danger, they should call the police and the board should make that clear. Beyond that, there are a few different approaches. First, I start with the condominium documents. The documents will often have language prohibiting an owner (or their tenant) from interfering with the “comfort or convenience” of other owners, or some other language in the rules and regulations promoting harmonious behavior while on common area. Based on this or similar language, a board can issue a violation notice for certain disruptive behavior and even fine the bully. If the bad behavior persists, the board can file an action in court and try and get an order from the Judge compelling the bully to comply with the condominium documents. The trouble is, if the bully is irrational (and let’s face it, if you are at this point, they are likely irrational), trying to enforce a court order could prove impossible. The only way to get a court order enforced is to keep going back to court on contempt charges. That gets expensive and time-consuming.
Second, the board could consider telling the owner or board member about something called a harassment prevention order. The Massachusetts Legislature passed a statute in 2010 that created a way for people who are victims of harassment to make it stop. A person suffering from harassment can ask the court for an order that simply prevents harassment, or that goes further and prevents the bully from contacting the complaining party or requires the bully to stay away from the complaining party’s home or work. The complaining party can also ask for money damages to compensate for any losses brought about by the harassment, including attorneys’ fees. A harassment prevention order is like a restraining order, which most people have heard of, but with some key differences. A restraining order applies to family or household members, whereas a person can get a harassment prevention order against anyone, regardless of the relationship, so long as the complaining party can prove to a Judge that the bully is actually engaging in harassment.
Under the statute, harassment is defined as (3) or more acts of “willful and malicious conduct”, aimed at a specific person, which are designed to cause fear, intimidation, abuse or property damage, and do in fact cause fear, intimidation, abuse or property damage. Alternatively, the complaining party could demonstrate that the bully has violated one of a number of specific criminal statutes.
The first and often biggest hurdle is the “(3) or more acts aimed at a specific person” requirement. Bullies do not always go after just one person. But, the complaint belongs to the individual and each individual has to show that they have been harassed three times (at least). It is not enough for a person to tell a Judge that the bully has made threats to a number of people, even if the threats are severe.
If an owner or trustee is successful in getting a harassment prevention order, it is important to note that the order is a civil order, meaning it does not indicate a crime has been committed. But, violation of the order is criminal. The police department is aware of and has to enforce the harassment prevention order. This can make it a much more effective tool than a civil order from a Judge.
All of that said, an enforcement action or harassment prevention order is not always appropriate. Yelling and bad language is not always harassment. Speech is of course protected by the First Amendment to the Constitution, unless it falls within the narrow class of unprotected speech like “fighting words” or “true threats”. It is very important that a board not overstep and try and prevent or punish permissible, albeit annoying, behavior. There are also situations that are so egregious they deserve a multi-pronged approach and often the involvement of law enforcement.
The take away here is if there is a bully in the building, the board should take it seriously and consider first whether to act, and then how best to act in light of the circumstances.
For any questions regarding this article, please contact Haley Byron at firstname.lastname@example.org.