When Residents Attack: A Lawyer Tells Condo & Co-op Boards How to Stay Safe – Janet Oulousian Aronson
Your condo board has just approved a large special assessment to finance the replacement of an aging heating and cooling system, and your owners are not pleased. But one owner in particular is infuriated by the decision. He shouts obscenities at the board during the meeting and continues to hurl insults at the board president after the session ends, blocking the door as the president tries to leave the room. He repeats those insults every time he sees the president, and bombards the board with unflattering e-mails. Four months later, these verbal assaults continue.
Is this just exceptionally boorish behavior, which the board should ignore? Or do this angry owner’s actions constitute harassment, which you can and should take steps to address?
Defining the point at which annoying behavior becomes harassing or abusive isn’t easy, but it is important, because harassment is a significant and growing problem among condo and co-op boards and community associations. Owners and co-op shareholders have been accused of harassing board members, managers, maintenance staff, vendors and other owners. And virtually every association has at least one member, if not more, who habitually interrupts meetings with angry harangues that often have little or nothing to do with the issues at hand.
Defining the Term
Black’s Law Dictionary defines 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, condo and co-op boards can turn to their governing documents or proprietary lease, which typically guarantee owners the right to the “quiet enjoyment” of their homes. That does not mean freedom from noise, but rather the right to live in one’s apartment without being annoyed, harassed, or otherwise interfered with by others.
Harassment, in most cases, involves a series of repetitive actions over some period of time. Yet whether the incidents are repetitive or isolated, the bottom line is 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.
Put It in Writing
Boards can amend their governing documents — or, if that’s impractical, the house rules — to specify that harassing or abusive behavior is not allowed. 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.”
While the language leaves the terms flexible, it is at least a place to start and a basis for taking action against homeowners who cross the line. While house rules haven’t the same presumption of validity as bylaws and amendments, the courts would probably uphold a reasonable and unambiguous rule. Having a rule is better than having nothing at all.
The first step when dealing with a harassing situation is to write the offending individual a letter — or have the board’s attorney write a letter — describing the behavior, noting that it violates your covenants, proprietary lease or bylaws, 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 not simply tell owners they are being bad, however; it should also suggest an alternative means of dealing with the underlying problem.
Harassing situations almost always develop because residents become frustrated about something – perhaps a problem hasn’t been solved or has not been solved as quickly or as happily as the resident had wished, or the board or the manager has not responded to or taken seriously his/her concern.
If you are dealing with someone who just got carried away by the emotion of the moment, a letter threatening sanctions and suggesting another way to deal with the problem is usually all that is required.
Sometimes a letter isn’t enough, however. There are people who are simply bullies by nature. Sending people like this a “you’d better cut this out” letter won’t alter their behavior. Imposing sanctions even may not help, and could actually make matters worse.
The next step is to go to court and seek a civil restraining order. A board member on the receiving end of abusive telephone calls or who is regularly assaulted verbally in public by an angry owner might seek an order prohibiting this resident from sending him/her e-mails and/or to remain a specified distance away.
In other situations, a board might seek an order barring disruptive residents from speaking at meetings or prohibiting them from attending meetings entirely.
Courts do not issue restraining orders lightly; in most cases, harassment must be part of a pattern rather than isolated incidents, and the targeted individual(s) must feel threatened. If you are dealing with actual physical threats — if a resident 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. And having a police report on file will strengthen your hand if you eventually seek a restraining order.
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 anger-management training or other psychological help. Turning the other cheek, however, is not a good alternative: You’re dealing with a classic schoolyard bully, and if you do nothing to stop the behavior, it will go on.
Whose Problem Is it?
Some condo unit-owners or co-op shareholders question whether it is appropriate for harassed board members to use condo or co-op funds to have the board’s attorney write letters or represent the board member(s) in civil proceedings. We think there is no question that this is an appropriate use of the 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.
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 and not thousands of dollars in court costs and legal fees.
Resident vs. Resident
When you are dealing with a resident is harassing another resident rather than the manager or a board member, the instinct is usually to let them work things out for themselves. But that could backfire and expose the board 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 many state fair housing laws. Boards have a legal obligation to intervene in these cases.
When dealing with resident vs. resident harassment charges, your board should first verify the complaint. Get copies of any abusive letters or e-mails, 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. You should then follow the steps outlined earlier for dealing with harassment against board members:
- 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
Obviously, it would be far better to defuse tensions before they evolve into full-blown harassment problems. Effective communications skills can help. They aren’t foolproof, but they are an effective first line of defense.
Some people are naturally effective communicators; they understand how to listen to angry people and respond without infuriating them further. 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 frustration.
- Remain professional. If someone shouts at you, don’t shout back. If you mirror 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, write a letter or make a decision, do so.
- Enlist the help of other residents.
That last tip is especially useful when dealing with chronic bullies. Someone who disrupts meetings might ignore the president’s order to sit down, but may respond if five other residents say likewise. The resident who shouts epithets in the parking lot will stop if other residents declare that this behavior won’t be tolerated. Bullies won’t stand up to a crowd.
As regards the relatively new phenomenon of cyberbullying, the advice doesn’t change. It is just another form of harassment, and depending on the content could give rise to claims for libel and defamation.”
Bullies thrive because people don’t want to get involved. But condo and co-op dwellers have more than the average power to control their destinies. For them, the question becomes: What kind of community do we want to live in?
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