Problem Owners? Try this One Little Trick!
OK, so no, despite the clickbait title, there is no one little trick to deal with problem owners. Maybe it’s the political climate or the phases of the moon, but it sure seems like the “problem owner” issue is out in force right now. Take the Florida community that was recently vindicated in an arbitration against a particularly problematic owner in this Florida article.
While the extent and ferocity of the defendant’s actions in the Florida case make it fairly unique, it is not uncommon that communities have a “problem owner” that they have a difficult time dealing with. Sometimes, problem owners merely create tension within a community, but sometimes they can truly terrorize their neighbors, as with the Florida community. These owners can be extremely difficult to deal with for a number of reasons.
First, despite cases like these that make the news, many communities do not have a clear and decisive process for dealing with violations of the rules (or other governing documents). Washington and Oregon law both require such a process, and if the owner is to be fined for the violation, the amount of the fine has to have been published to the owners beforehand. So if this is the first time a particular community Board is dealing with a significant problem, they may not have the procedures or the fine schedule in place. Getting these in place can take time, effort, and money, all of which may not seem warranted early on.
Another hurdle can be determining whether the behavior actually violates some rule or other provision. Take a trash rule for example. Most communities have specific rules like requiring owners to take their trash cans by the day after trash day. A violation of this provision is fairly obvious; if the trash is still out on Tuesday when trash day is Monday, the owner can be sent a notice of violation that warns of imposing a reasonable fine (from the previously published schedule) and that gives the owner an opportunity to be heard. But with harassment-type behavior, especially when that behavior involves speech, it can be hard to identify a violation.
Most Pacific Northwest condominiums or HOAs do have some version of a covenant or rule that prohibits “nuisance” or “obnoxious and offensive behavior” like the one in the Florida case, but few of these provisions are specific as to what behavior constitutes a nuisance or offensive, leaving such decisions to the board of directors or compliance committee. Does swearing at the neighbors constitute a violation? What if they swear at everyone? What if they not only swear, but shake their fists? Is that a threat? Is it a “nuisance”? What if the behavior is obnoxious to one board member, but doesn’t remotely phase another. In the Florida case, the owner’s behavior was so outrageous that there was little doubt it was a nuisance as that term is legally defined in Florida. But boards are generally not well versed in case law that constitutes nuisance, and even if they were, the more typical behavior is much more subtle.
The “nuisance” or “offensive behavior” rule is generally used as a default – if no specific provision is violated, but the behavior seems wrong somehow, the Board can consider whether the behavior violates this kind of rule. But because the standards are vague, the decision that a violation of this type of rule was committed can be much harder to definitively make. Volunteer board and committee members are not generally trained adjudicators versed in nuisance law. And they usually live in the community, so it can be hard for them to make decisions to fine their neighbors where the standard is unclear. The inability to agree on whether the behavior violates the standard can result in delay while the behavior continues or escalates. Moreover, failure to impose swift and decisive penalties can send the message to difficult owners that the rules will not be enforced, or at least not consistently.
Finally, the fact that problem owner behavior approaches criminal behavior makes it even harder for some communities to act swiftly and decisively. While the goal of a community associations’ rules is generally to promote harmonious living, HOAs are not, and should not be, the vehicle with which to punish crime. We tell clients all the time that if an owner is observed committing a crime, call the police. But the sad reality is that it rarely solves the problem, especially where the observed behavior is not criminal, but suggests criminal activity. For example, if you live in a community and observe that people are coming and going at your neighbor’s at all hours, but mostly in the evening, and that they stay for only a few minutes and leave shortly thereafter, you may suspect illegal drug activity, but you can’t prove it. Harassment can be like this as well. Under Washington law, for example, it can be a crime to repeatedly email another person if the purpose is to harass or embarrass, but where that person has a somewhat legitimate reason to be emailing (like requesting records from the manager), the intent can be hard to prove. Yes, 500 emails in one day is easily for the purpose of harassment, but what about 10? And does it make a difference if the owner is polite and sends 20 messages or uses profanity and sends 5? Obviously, these questions are much harder to answer than the question of whether the garbage was left out too long.
Most of the time, what the community really wants is for the problem owner to leave the community, after all, if the owner hates it there so much, why don’t they just leave? Anyone who’s ever been in this situation knows that the likely kindergarten-level response is “Why don’t you just leave!” Appeals to the owner directly can have very little effect where the owner has no ability to leave, where mental illness may be playing a role, or where the problem owner is not an owner at all, but a tenant of an absentee owner. And anyway, running people out of town pretty much went out with the Wild West.
Community associations do have at least two unique remedies that private citizens do not have, however: fines and foreclosure. These remedies can be very effective, but they require meticulous adherence to the enforcement provisions of the governing documents. Most modern communities have language emphasizing that fines are also assessments, so if an owner racks up monthly fines and doesn’t pay, that community may be able to foreclose. Especially where an owner is completely nonresponsive to attempts at compliance, the “fine ‘em and foreclose on ‘em” path might just work.
It may seem absurd that it took years for the Florida community in the article to get justice, but months can easily fly by if a community feels uncomfortable making an enforcement decision, or if it needs to create or refine procedures for enforcement, or update a fine schedule. Ultimately, the best possible way to deal with an enforcement issue is to be proactive by addressing the procedural issues before you need them. And if you are in the middle of the issue, a step back to address these issues will likely bring quicker resolution.
Or, if you prefer, just follow these three easy steps (you’ll be amazed by the results!)
- If you find yourself relying upon a general nuisance or offensive behavior rule, consider whether promulgating a more specific rule will help. For example, if noise is the issue, consider a rule regarding quiet hours with a specific standard, like any noise that can be heard from the common areas.
- Make sure your fines do their job. Fines should be high enough to discourage undesirable behaviors, while still being reasonable.
- Make sure your enforcement procedures allow for the imposition of additional or escalating fines for ongoing or continuous behavior. Most real problem owners become that way because their behavior is made up of repeated incidents, but ongoing behaviors (like having an inoperable car or other trash in the yard) need to be addressed as well.
- Be swift and decisive and, if possible, dispassionate. In my experience, problem owners like the one on Florida thrive on the conflict; they live to get under your skin. Probably the best thing a community can do when faced with a problem owner is send the message that the behavior will not be tolerated and that the community will not get pulled into the drama. Confronting owners or railing against the injustices without doing something concrete to address the problem only feeds the behavior; dispassionate and methodical enforcement does not.
Ultimately, it’s healthy to acknowledge that your HOA is not the vehicle for solving all of the world’s problems, but having specific rules with clear standards, clear enforcement procedures, and a fine schedule that really does its job can go a long way to solving some of your community’s problems.