Condo Media - November 2024 - 41

Additionally, and despite the best
intentions of prior boards, the prior
action might have been a mistake in
the first place, as it was based on an
incorrect interpretation of the governing
documents or applicable law.
Where the board determines,
in good faith and reasonably, that
adherence to its prior decisions or
actions is not in the best interest of
the association, departure from them
may well be appropriate.
Consistent decision making supports
confidence in the board's fairness and
promotes community cohesion.
DISCRETION TO ACT
Circling back to the quasi-judicial role
association boards play in the hearing
context, one could ask whether different
considerations apply. Certainly, there
are potential pitfalls in the quasi- judicial
context, as the potential for selective
enforcement - or the perception of
selective enforcement - may be more
immediate, as are the impacts on individual
unit owners. However, Vermont's
Common Interest Ownership Act
expressly grants discretion to boards
in deciding whether to take action to
enforce the governing documents.
It provides that a board has no
duty to take enforcement action if
it determines
that, under
the circumstances,
the
association's
legal position
doesn't justify
it, the provision
that would be enforced is inconsistent
with the law, the violation would
be seen by a reasonable person as
too minor to justify expending the
association's resources on enforcement,
or it's not in the association's best
interests to pursue enforcement. In case
there were any doubt about the extent
of the board's discretion, the statute
goes on to specifically provide that a
decision " not to pursue enforcement
under one set of circumstances does not
prevent the executive board from taking
enforcement action under another set of
circumstances, " so long as it does not act
arbitrarily or capriciously (27A V.S.A.
§ 3-102(h)).
As a general matter then, precedent
may inform association boards in
taking action, but isn't necessarily a
straitjacket binding them, and should
be considered with reference to the
duty each board member owes to
the association.
n CHRISTINA A. JENSEN IS AN
ATTORNEY OF COUNSEL AT PRIMMER
PIPER EGGLESTON & CRAMER PC
IN BURLINGTON, VT.
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November 2024 CONDOMEDIA 41
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