Dec 02, 2010
By Lou Caplan Esq.
When Boards of Directors are elected to your community association, whether a Condominium, Homeowners Association, Cooperative or the like, normally the Board anticipates that their functions will be to assure that the properties are properly maintained, that the budget is sufficient to address the Association’s obligations, including maintenance, and that at times they will be in a position to enforce the documents. What they don’t normally anticipate is having to address behavioral issues, which includes keeping the peace within the community and dealing with the various personalities of the membership and the Board. Those are the issues that are not specifically addressed in the Association’s documents and the pertinent statutes affecting your community. The purpose of this article is to provide some ideas to help address ways to keep the peace within the community.
First, we always suggest to Boards that they try to depersonalize their relationships with the owners when it comes to addressing Association matters, especially dealing with enforcement matters. One way to do that obviously is to make sure that the relationship between owners and the Association, relative to enforcement issues and the like, are through management or other professionals, including at times the Association’s attorneys. Therefore, we strongly encourage, if the Association’s financial situation would allow, that the Association Board obtain the assistance of professional management, and delegate to management the authority to perform these necessary functions. Please note that as it relates to the Board members, the residents within the community are your neighbors, and therefore it’s not fair for a Board member to have to send letters directly to a neighbor and then have to deal with the potential personal responses, including sometimes personal threats.
Additionally, it’s important for Boards not to respond to the vocal minority. More specifically, if a community has several hundred homes, and 5 or 6 people attend a Board meeting and bring an emotionally charged issue to the Board, the Board needs to take that information, independently investigate it, normally with the assistance of management, and then make an educated decision. What Boards tend to do is they tend to respond to what may be the vocal minority (those people who attend the meeting), when it is not necessarily in the best interests of the entire community and the majority of the residents. While I know it is difficult for a Board not to respond and try to ease the concerns of the few people who attend the meeting, you need to make sure that in doing so; you have not made a decision that ends up not being in the best interests of the entire community.
At Board meetings, Board members need to again depersonalize issues brought to their attention, and avoid debate where the Board has not had an opportunity to truly investigate the issue. If someone brings up an issue at a Board meeting, even if it is personalized and done so in an aggressive manner, the appropriate response would be to thank the owner for their comments, advise that they will look into it, and then respond in a non-emotional manner at the appropriate time. Trying to debate a difficult issue in an emotional environment is not the best way to keep the peace. Another important way of keeping the peace within the community is to allow owners to participate at Board meetings. Please note that for Condominiums, owners do have a right to participate at Board meetings, which right is more limited in Homeowners Associations. Notwithstanding, we normally suggest that owners be given the opportunity to participate early in the meeting to avoid frustration. If an owner is asked to sit through a two hour meeting, and all the decisions are made prior to their input, they will feel frustrated. Therefore, we normally suggest that owners have the right to participate sometime towards the beginning of the meeting, allow them to make their comments, thank them for their input and then go about Board business. Owners don’t have to agree with the ultimate Board decision, but at least they will hopefully feel that they were involved in the process.
When a Board is forced to enforce the documents and address violations, it is of the utmost importance to be uniform in enforcement. First, if you are uniform, then again it is depersonalized and someone can’t claim that the only reason you are coming after them is because they live next to the Association President. When we are addressing all similarly situated violations in a similar manner, then we can defuse any claims that the enforcement is somehow due to a personal vendetta. Also, from a legal perspective, one of the only defenses to an enforcement action is where the Association has selectively enforced. Selective enforcement means that the Association has treated one person differently than another person who is similarly situated. Therefore, uniform enforcement is not only important to keep the peace, but it’s important from a legal perspective.
Issues between neighbors can be divisive for the community, especially when the Board picks a side. If a dispute is truly between neighbors, then the Board should stay out of it and let the neighbors address it between themselves. If the dispute is in fact over a violation of the documents, then it should be properly investigated and if necessary, pursued by the Board, but again, picking sides in a dispute between neighbors is not normally in the best interests of the Association.
One of the biggest problems that we see, and one of the most common causes of dissatisfaction from the community is where certain Board members do not respect the decisions of the entire Board. A good Board is a Board that debates issues, and then comes to a decision that a majority of the Board feels is in the best interests of the Association. If that is the case, a Board member who may not have voted with the majority should respect the process and the decision of the Board. That means that that Board member should refrain from politicking within the community for the purpose of creating dissension.
Finally, it’s very important for the Board members to understand their obligations and of course their authority. Know your obligations relative to inspections of Association records and inquiries from owners in the Condominium context. If the owners feel that they are being denied their rights, and their rights are pretty extensive pursuant to the pertinent statutes, then that will cause unrest. Sometimes Board members are not aware of their obligations both under their documents as well as the statute, and do not realize the entitlement that owners have as members of the Association. Denying those rights make it difficult to keep the peace. Also, don’t be afraid to rely on professionals, which professionals can be the buffers between the Board and the membership and again make it less personal. This could include your insurance agent, your accountant, your lawyers, and most importantly, management. It’s important to realize that owners are members of the Association, shareholders in the corporation and therefore have rights. Make them feel that their rights will not be abridged, and that their involvement in the community, including their attendance at Board meetings, is appreciated and respected.
Louis Caplan, a Director and Chair of the Community Association and Country Clubs Practice Group, of Sachs, Sax & Caplan, practices in the area of community association law, representing condominium and homeowners associations. He brings to his clients extensive experience in his chosen field. Mr. Caplan is a frequent lecturer and columnist on community association matters, contributing to both the Palm Beach County Bar Association, The West Boca Community Council and the Community Associations Institute.