Harassment In HOAs: Defining and Preventing Unacceptable Behavior

Resource Topic: 
Litigation
Covenant/Rule Enforcement

Unacceptable Behavior
The condominium association’s board of directors has just approved a large special assessment to finance the replacement of an aging heating and cooling system, and owners are not pleased, to say the least.  But the decision infuriates one owner in particular.  He shouts obscenities at the board during the meeting and continues to hurl insults at the board president after the meeting ends, blocking the door as the president tries to leave the room.  He repeats those insults and some new ones loudly every time he sees the president, sends him countless unflattering e-mails, suggesting, among other things, that a bedpan (to whom he compares the president unfavorably) could do a better job of managing the association’s affairs.  Four months after the assessment meeting, these verbal assaults are still continuing.  Is this an example of exceptionally boorish behavior, which the president should ignore?  Or do this angry owner’s actions constitute a form of harassment, which the board president can and should take steps to address?
 
As with many legal questions, the answer is not entirely clear-cut, depending in part on the circumstances and in part on the personalities of the individuals involved. Many board members would almost certainly feel harassed by the behavior described here, while others might find it merely annoying. 
 
Defining the point at which annoying behavior becomes harassing or abusive isn’t easy, but it is important. Unfortunately, harassment is a significant and growing problem in community associations as the number of complaints about owners harassing board members, managers, maintenance staff, vendors, and sometimes other owners rise every year.  It seems as if most associations have at least one member, if not more, who habitually interrupts meetings with angry and endless harangues that often have little or nothing to do with the issues at hand.
 
This isn’t a community association problem per se; it is a societal problem that community associations, which are, after all microcosms of society, reflect.  Human interactions in all areas have become less civilized.  People are more inclined to shout their disagreements and less inclined to discuss them; they are more demanding and insistent on having their way and less tolerant of people who don’t give them what they want or think they are entitled to have.  The psychologists can analyze the causes – homeowner associations must deal with the results.
 
Defining the Term
Before associations can deal with harassing behavior, they first have to define it, and then make it clear that harassing behavior, however defined, will not be tolerated.  Black’s Law Dictionary provides a starting point, defining harassment as “words, gestures, or actions which tend to annoy, alarm, or abuse another person.”  To annoy, Black’s suggests, is “to disturb, irritate” or “cause discomfort,” while abuse consists of “insulting, hurtful, or offensive wrongs or acts.” 
 
Building on that legal definition, homeowner associations can turn to their covenants, which typically guarantee owners the right to the “quiet enjoyment” of their homes.  This language does not mean (as some assume and others might hope) the freedom from noise, but rather the right to live in the community without being annoyed, harassed, or otherwise interfered with by others. We suggest that communities amend their covenants to specify that harassing or abusive behavior is prohibited.  The language can be simple, as in this model clause:
 
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.
 
The language still leaves room for debate about the point at which annoying behavior becomes abusive or a strong expression of opinion becomes intimidating, but it is a place to start and a basis for taking action against homeowners who cross the line. If amending the documents is too expensive, too time consuming, or not possible, the board could adopt a rule using the same language.  While rules don’t have the same presumption of validity as covenants, the courts would probably uphold a reasonable and unambiguous rule.  In any event, if you are pursuing a harassment claim, having a rule is better than having nothing at all.  
 
It is possible to envision isolated instances that might constitute harassment or intimidation - -when the furious owner described earlier blocked the doorway, for example, the president might well have felt threatened or at least intimidated.  But in most cases, harassment involves a series of repetitive actions that occur over some period of time. Whether the incidents are isolated or repetitive, the bottom line will always be whether the targeted individual felt intimidated or threatened, not whether the angry individual viewed his/her actions as abusive or intimidating or intended them that way.
 
The First Step
The first step when dealing with a harassing situation is to write the offending individual a letter – or have the association’s attorney write a letter – describing the behavior, noting that it violates the association’s covenants (or rules, if that’s the case), and stating that the individual will be subject to fines or other specified sanctions and possibly legal action if the behavior doesn’t stop. The letter should go beyond telling an owner that his or her behavior is unacceptable. It should also suggest an alternative means of dealing with the underlying problem.
 
Harassing situations almost always develop because owners have become frustrated about something such as an unsolved, slowly solved, or an unsatisfactorily solved problem. Other causes include a failure of the board or the manager to respond to the owner’s concern or the owner’s perception that his/her concern has not been acknowledged or taken seriously.  
 
If you are dealing with someone who just got carried away by the emotion of the moment or the frustration of an issue and over-reacted, a letter threatening sanctions and suggesting another way the owner can deal with the problem is usually all that is required. It’s the equivalent of throwing a glass of cold water in their face – it makes them aware of what they’re doing and of the consequences of their actions. 
 
Dealing with Bullies
Sometimes a letter isn’t enough, however.  There are people who are simply bullies by nature and intimidate and abuse everyone. Take, for example, the problems experienced by one association we represented who had a retired referee for a major professional sport living there.  For 40 years, when this individual threw a flag or blew a whistle, the action stopped and everyone listened to him.  Unfortunately, he expected the same reaction when he spoke at association meetings or demanded action from a board member. When he discovered that the ‘game of life’ doesn’t follow the same rules as the sport he used to make the calls for, he quickly became abusive.  Sending this referee and people like him a ”you’d better cut this out” letter won’t alter their behavior. Imposing sanctions (fines, the revocation of privileges, or other penalties) probably won’t help either and may actually make matters worse.  
 
The next step up the response ladder is to seek a civil restraining order in court, the details of which will depend on the nature of the offending actions.  A board member who is on the receiving end of endless, abusive telephone calls or who is regularly assaulted verbally in public by an angry owner might seek an order prohibiting this owner from sending him e-mails and/or ordering him to remain a specified distance away.  In other situations, a board might seek an order barring disruptive owners from speaking at meetings or prohibiting them from attending meetings entirely. 
 
Courts do not issue restraining orders lightly. In most cases, the harassing actions must be part of a pattern rather than isolated incidents, and the targeted individual(s) must feel threatened by the actions.  If you are dealing with actual physical threats -- if, in addition to shouting, “You’re an idiot and your mother’s ancestors walked on four legs,” an owner raises a fist, pulls a gun, or says “I’m going to kill you,” call the police immediately.  Even if you don’t think the threats are real, having the police respond is a reasonable precaution.  Having a police report on file will also strengthen your hand if you eventually seek a civil restraining order against this individual.
 
Filing criminal charges remains another option. Many people are understandably reluctant to file a criminal charge against a neighbor, even one who is behaving badly.  But even if found guilty of harassing or threatening others, these individuals won’t necessarily end up serving prison terms; a court may simply order them to seek the anger management training or other psychological help they clearly need.  Turning the other cheek is not a good alternative; it is like dealing with the classic schoolyard bully – if you don’t do anything to stop the behavior, it will continue.
 
Whose Problem Is it?
Some owners question whether it is appropriate for individual board members who are being harassed to use association funds to fight back by having the association’s attorney write letters to the offending owners or represent the board member(s) in civil proceedings.  This is an appropriate use of association funds, for two reasons:

  • The board members are being harassed because of their actions as board members.
  • The harassing behavior is preventing them from doing the job for which they were elected, which makes the harassment an association issue and a legitimate association expense.

Also, it is important to note that seeking a restraining order is not a hugely expensive undertaking.  These cases are usually heard quickly and do not require extensive preparation or court time.  They usually involve “hundreds” not “thousands” of dollars in court costs and legal fees.
 
Owner vs. Owner
When you are dealing with situations in which an owner is harassing another owner rather than the manager or a board member, the arguments for board intervention are a bit murkier, but may be even more compelling. The instinct is usually to let owners embroiled in personal conflicts work them out for themselves.  But that theory could backfire and expose the association to serious liability if the harassment involves illegal discrimination based on race, sex, color, religion, national origin, marital status, physical or mental handicap -- all specifically protected categories under federal and Colorado fair housing laws.   Associations do have an affirmative obligation to intervene in these cases and could be charged with violating fair housing laws if they do not.
 
One example:  A community association member was persistently harassing the former president of the association, who was of a different ethnicity than the harasser. The harassment was extreme, including physical threats and racial and sexual slurs.  The woman filed suit against the board when it refused to intervene, and a District Court ruled that a community association board has the same obligation as a landlord in a rental building to protect residents from sexual and racial discrimination.  The association eventually settled the case by paying the former president $550,000 and agreeing to purchase her condominium unit.  Clearly, the stakes in these disputes can be high.
 
When dealing with owner vs. owner harassment charges, the board should first verify the complaint – get copies of any abusive letters, e-mail messages, or tapes of abusive phone calls.  If the behavior occurs in person, have a third party, the manager or one or more board members, witness the threatening behavior.  The board should then follow the steps outlined below:

  • Have the board’s attorney send a letter to the offending owner describing the offending behavior and insisting that it must stop.
  • Impose sanctions if the behavior continues.
  • Offer to mediate the dispute and/or suggest that the owners seek third party mediation services.
  • Seek a civil restraining order against the owner if the harassment continues.
  • Document all the intervention measures to demonstrate the board’s good faith efforts to deal with the problem. 

Essential Communication Skills
Most of the advice we’ve discussed thus far has focused on the legal or quasi-legal steps boards can take to deal with harassment situations.  Obviously, it would be far better to defuse tensions before they evolve into full-blown harassment problems. Effective communications skills can help. Although such skills are not a foolproof shield, they are an effective first line of defense for the board members and managers whose positions require them to deal with angry owners. 
 
Some people are naturally effective communicators; they understand how to listen to angry people and respond without infuriating them further.  Fortunately, communications courses can teach those skills to people who don’t possess them.  One of the most important things these courses teach is that while you can’t control another individual’s abusive behavior, you can control your response to it so that you don’t make a tense situation worse.  Other basic tips for dealing with angry or frustrated individuals:

  • Start by listening.  Sometimes people simply need an opportunity to explain a problem or vent their frustration.
  • Remain professional. If the individual shouts at you, don’t shout back.  If you mirror the abusive behavior, it will escalate.
  • Suggest an alternative. People often become frustrated because they feel powerless.  Showing how they can solve a problem may ease the tension.
  • Respond to the problem.  If you say you will obtain information or write a letter or make a decision, do so. 
  • Enlist the help of other owners. 

Some of these measures will help with most owners, but, as noted earlier, if you’re dealing with chronic bullies, none of them will help. That’s where the last item on the list – getting other owners involved — comes in.  The owners who disrupt meetings might ignore the president’s order to sit down, but they may well respond if five other owners repeat the command.  The owner who shouts epithets at the board president or the manager in the parking lot will stop if other owners tell him that behavior won’t be tolerated.  Bullies, by definition, won’t stand up to a crowd. 
 
Bullies thrive in society, as they do in homeowner associations, because people don’t want to get involved. But community association residents have more than the average power to control their destinies.  For them, the question becomes:  What kind of community do you want to live in – one that mirrors our uncivil society or one that provides a haven from it?