LOVE THY NEIGHBOR

Published on: January 12, 2016

It is undeniable that the Commonwealth’s population is getting older. At home, families face the difficult task of caring for elderly loved ones, and in the public, taxpayers and politicians grapple with the challenges and expense of an aging population. As this happens on the small and large scale around us, condominium boards may also be placed in the difficult, and likely uncomfortable, position of handling problems associated with their community’s maturing population. While the challenges that a board might face are as numerous as the number of unit owners in the association, this article explains why condominium boards should be aware of (1) basic community service contacts for the elderly, (2) certain insurance considerations, and (3) the limits on enforcement actions when the violator is simply unable to comply with the condominium governing documents.

By way of example, a condominium board was recently faced with the very difficult task of responding to unit owners’ complaints about an elderly unit owner whose behavior caused neighbors to call the local authorities on two separate occasions for potential hazards associated with the upkeep of the unit. Understandably, the neighboring unit owners were concerned for their safety and were upset about attendant property damage. But, the neighbors were also compassionate and considerate of the health and well-being of their elderly neighbor. This case illustrates the competing issues facing condominium boards as more and more unit owners reach their golden years.

Community Outreach

By no means should a board develop a paternalistic approach to its administration of the condominium association. An individual association’s condominium documents and the Massachusetts Condominium Act lay out a board’s obligations. But, if unit owners come to the board with legitimate concerns regarding an aging unit owner’s health and well-being, particularly if there has been property damage or a violation of the condominium governing documents, the board cannot turn a blind eye.

In most situations, when confronted with an ailing unit owner, the first step to take is to contact the unit owner’s family. It may be difficult for the board to get family contact information. In some cases, the property manager may have this information on file or the unit owner may supply it willingly. The board could also do a quick google search. If the problem becomes widespread in a particular association, the board may want to consider asking all unit owners (not just the elderly owners) to provide emergency contact numbers. The request would need to be completely voluntary.

If the board is successful in getting contact information, the next hurdle is making productive contact. When speaking with the family member, it is important that the board or property manager discuss the unit owner’s behavior only, and not any condominium fees or other amount the unit owner might owe, as that is protected information. Once contact is made, the board should be mindful of the sensitivity of the situation and remain goal-oriented in creating a plan of contact going forward. If a unit owner is in poor health, it is likely the family is already considering its care options. The family member may offer to take an active role in the association and the board can rely on that person as a point of contact in the event of a problem with the unit owner in the future.

As condominium associations consider this issue, different ideas about how to pre-emptively address the problem have arisen. One such idea is to look for volunteers – unconnected to the board – who could reach out to neighbors to check on them and make sure they do not need assistance. In the right community, this could be a great way to keep a helpful, unobtrusive eye on elderly and infirm neighbors and also foster goodwill in the building.

Unfortunately, not every unit owner will have family willing or able to intervene on their behalf. In the case of an elderly neighbor with no local family connections, it may be prudent for the board to reach out to its local elder services agency.

The Commonwealth’s Executive Office of Elder Affairs creates high level policies and practices that are then carried out and brought to the public through each community’s Aging Services Access Points (ASAPs), which are 27 centrally located agencies capable of providing direct services to elders in the community. Each ASAP has a phone number that will take calls 24 hours a day. ASAP personnel can then reach out to protective services, or, assign a case manager to a particular person that can address the individual needs of that person. Each town’s council on aging will also be able to provide information and referrals to an elderly citizen. In the event of an emergency, or to conduct a wellness check, the board should of course contact the local police department.

No board or board member should feel compelled to insert itself as caregiver of any individual unit owner. However, as discussed below, if enforcement action is necessary following persistent violation by a unit owner of the condominium documents or property damage, the first thing a judge will likely ask is whether the board has taken any steps to get family or social services involved. Given the complexity of any person’s individual condition, it is likely best to have a caregiver involved who is either personally invested in the unit owner’s care (such as family) or trained in dealing with this vulnerable population.

Physical Property Damage and Insurance

No matter a unit owner’s physical or mental condition, the board will almost always become involved when one unit owner’s actions cause damage to their or another’s unit. If the board has recorded a standard insurance resolution, then that document will clearly lay out the steps to be followed in the event of a loss in a unit(s).

A standard resolution provides that the board can assess the costs of the master insurance policy deductible (assuming the loss is more than the deductible) to a unit owner at the board’s discretion. Typically, the board will apportion the amount of the deductible between the units experiencing the loss, but every circumstance can be evaluated on a case-by-case basis. The resolution also provides that a unit owner is responsible for maintaining individual coverage to cover the cost of said deductible. The board should also bear in mind that an individual unit owner’s insurance policy may cover the costs of damage to common area if the unit owner is responsible for that damage.

A resolution of this type puts the community on notice of the master policy deductible, which not all unit owners consider, and the process for covering the costs of the same. While loss cannot always be prevented, the right insurance can help a community recover from both large and small scale damage.

Enforcing the Condominium Documents

If property damage results and is not paid for by a unit owner or their insurer, or if dangerous or offensive behavior persists and there is no family or social services help available, the board may have no choice but to pursue legal action against an elderly unit owner. When it comes to enforcement actions involving behavior in individual units, the board must be very careful not to overstep. As the Supreme Judicial Court made clear in its 1975 decision Johnson v. Keith, administrative rules and regulations apply only to the use and operation of common areas and facilities, and cannot regulate conduct in individual units. 368 Mass. 316, 319 (1975). Thus, to the extent a unit owner is violating the condominium rules and regulations by activity undertaken in the common area (e.g., leaving common windows open or leaving trash where it does not belong), the Board is well within its rights to fine the unit owner for his or her behavior and file a lawsuit if necessary to enforce the lien for fines and request an injunction ordering the cessation of the relevant behavior.

If, however, a unit owner is engaged in troublesome conduct in his or her unit (e.g., hanging towels in the window or generating loud noises) the Board must be careful that it has a basis in the Master Deed or By-Laws to fine the unit owner and/or pursue an injunction in court to stop the behavior. Most condominium Master Deeds and/or Declarations of Trust contain broad language prohibiting a unit owner from carrying on a nuisance or annoyance in his or her unit that interferes with the peaceful use of the condominium by other unit owners. This language may form a sufficient basis upon which the Board can seek fines and a court order demanding that the unit owner stop the offensive behavior.

But what use is a court order that a unit owner, because of his or her own mental or physical infirmities, cannot follow? Moreover, the first thing a judge will ask when the association’s lawyer is before them seeking such an order is what steps the association has taken to contact the unit owner’s family or social services. In most scenarios, a court will be very wary of “going after” an elderly unit owner for fines, particularly when the objectionable behavior appears to be the result of an age-related condition. The limited efficacy of rules and restrictions in the condominium documents highlights the importance of the board’s attention to its non-legal recourse.

The board is certainly not the caretaker of the unit owners. But, if the board ignores the legitimate concerns of its neighbors about a unit owner who is showing troubling signs of his or her age, it could end up grappling with serious property damage, or worse, the aftermath of an emergency. Consequently, the board should: (1) get smart about the local services available to the elder community and use them; (2) take a look at what the condominium documents provide with respect to the master insurance deductible; and (3) understand that in an enforcement action against an elderly or infirm unit owner, a court will consider whether the board has done all that it can, short of litigation, in interacting with this important and protected group of our citizenry.

For any questions regarding this article, please contact Haley Byron at hbyron@meeb.com.