HOAleader.com - Tip of the Week - March 31, 2023
Published: Fri, 03/31/23
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HOAleader.com - Tip of the Week - March 31, 2023
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In this week's tip, we answer an HOAleader.com reader's question that's essentially a no-win for an association. What can and should the board do to stop an adult child of owners who's harassing, threatening, drunk, and drives without a license?
"It's going to be key that there's probably something in their documents that gives them authority over safety or a nuisance," reports Cindy Hill, a lawyer at Tannenbaum Lemole & Hill in Osprey, Fla., who at any given time represents 150 associations throughout Sarasota, Manatee, and Charlotte counties in Florida. "You don't need them to cover being drunk; you just need something covering nuisance."
You also need to analyze whether this is a neighbor-to-neighbor dispute or something the association needs to step in to handle. "It's certainly something a board must investigate," states Jasmine F. Hale, CCAL, a partner at Berding & Weil based in Walnut Creek, Calif., who advises condos and HOAs throughout California.
"One of the underpinnings of fiduciary responsibilities is a duty of care, and that means you have to engage in a reasonable inquiry," she explains. "That may include having legal counsel review your documents: Is this something the association needs to enforce?
"It may be a nuisance—most documents have such a provision, and the board may have reasonable grounds to try to gain the occupant's compliance," notes Hale. "The board may go to a certain point to try to fix this.
"But a lot of homeowners assume that if there's a duty in the governing documents, the board is going to fight an issue all the way to the Supreme Court," she states. "That's not what the duty of care requires. It requires you make a good-faith decision.
"You've made a finding, you've taken some sort of enforcement, and you're going to stop here because the continued legal expense isn't justified," explains Hale. "Boards have a right to make those choices as long as they've engaged in that evaluation and met their duty of care.
"So the board should act," she notes. "But also as a best practice, once a year, perhaps in their annual disclosure package that's sent to homeowners, they should add language to the effect of: 'The HOA isn't the guarantor of your safety or provider of safety in the community. We try to make this a good and livable community but we're not taking on that responsibility.'"
Hale says there's another message you should be sending residents in this situation. Find out what it is—along with the pros and cons of various actions you might take—in our new article: https://www.hoaleader.com/members/4679.cfm
Best regards,
Matt Humphrey
President
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Click here for more:
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