HOAleader.com - Tip of the Week - December 6, 2019
Published: Fri, 12/06/19
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Kids Playing in Condo Hallways: Enforcement May Be Tricky
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In this week's tip, we address a challenge currently being faced by a Chicago condo high-rise resident who's frustrated! Her neighbors' kids play in the hallway of their high-rise condo, running up and down the hallway while not using their inside voices. The condo owner has complained to the manager. But so far, the kids' parents haven't stopped the nuisance.
Sounds like a simple issue. But condo boards should know that addressing problems created by kids without getting tagged with familial discrimination claims can be challenging.
Lawyers can be so uptight, right? So sometimes it's OK to just take their concerns with a grain of salt because they're always too cautious.
Not so fast.
"I don't think it's an overreaction to be cognizant of the risk that somebody might argue that you're discriminating on the basis of familial status if you pursue enforcement of something like, say, a nuisance provision with respect to children playing loudly in the hallways or other parts of the condo," explains Matthew A. Drewes, a shareholder at DeWitt Mackall Crounse & Moore S.C. in Minneapolis. "However, this matter should be something the association can address if it's doing so consistently and following its usual protocols.
"If there's been loud music, the practicing of an instrument, and other problems with noise that the board hasn't pursued and now wants to pursue this one issue with loud kids, there's a greater risk it'll be accused of discriminating," he predicts. "That's where I think the risk is greatest."
Still, you can tackle this issue. "Even where there's the potential for the appearance or an accusation of discrimination, I usually counsel associations to look for ways to ensure that they're being consistent and fair," explains Drewes. "That way, those who are following the rules don't feel like the rules are being undermined."
There are two schools of thought on handling this type of situation, explains Drewes. "You should provide notice of a violation before you get to the level of fining," he says. "There are two valid ways of looking at the best way to make that first contact with someone accused of violating some provision. One is to make a phone call or knock on their door," he says. "You're treating them like a human being, showing them that respect, and having that informal, more personal contact.
"The risk you have there is that if that contact isn't documented in some way, there's no record of what's said during that conversation," notes Drewes. "There will be those who'll take advantage of the situation where there's no record and claim something was said that wasn't. So if you handle the first warning in an informal manner, be aware that someone will take advantage of you for being kinder and gentler.
"The other school of thought is that, even though it's a little more impersonal, you should start with a letter," he states. "You say, 'Here's the provision and what's been claimed that violates it, and here are next steps if the problem continues.' Maybe you still want to invite those owners to a conversation, but often that's done with more than one person so that it's not just you on the phone or at the door."
You can't ensure that nobody will file a discrimination complaint against your association. But you can work hard on a daily basis to ensure that all complaints that are filed are quickly determined to be unfounded. Get tips to do that, and read about a case that gave one of our expert lawyers pause, in our new article: https://www.hoaleader.com/members/4023.cfm
Best regards,
Matt Humphrey
President
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