Condo Media - January 2010 - 41

against homeowners who cross the line. If amending the documents is too expensive, 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 issue will always be whether the targeted individual felt intimidated or threatened, not whether the angry individual viewed his or her actions as abusive or intimidating or intended them that way. If you are dealing with someone who just got carried away by the emotion of the moment or the frustration of an issue and overreacted to it, 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, and we have dealt with some of them, who are simply bullies by nature; they intimidate and abuse everyone. A former NFL referee who lived in one of the associations we represent is an example; for 40 years, when this referee threw a flag or blew a whistle, action stopped and everyone listened to him. He expected the same reaction when he took the floor at a meeting or demanded action from a board member, and he became abusive when that wasn’t the case. 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 go to court and seek a civil restraining order, 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 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 The First Step The first step to 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, 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 owners have become frustrated about something: because a problem hasn’t been solved or has not been solved as quickly or as happily as the owner had wished; because the board or the manager has not responded to the owner’s concern; or because the owner perceives that his or her concern has not been acknowledged or taken seriously. pattern rather than isolated incidents, and the targeted individuals 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,” you should 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 civil restraining order against this individual. 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 go on and on. 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 members in civil proceedings. We think there is no question that 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. CONDO MEDIA • JANUARY 2010

Condo Media - January 2010

Table of Contents for the Digital Edition of Condo Media - January 2010