Last year, there was a disturbing trend of confrontation – some of which even became violent between condominium owners or homeowners, and their association board members. From our own back yard to across the globe, there were several instances of multi-family housing residents whose disputes were bad enough to make the news. This should be unacceptable – and more importantly – avoidable. To prevent physical altercations like these from happening, we offer the following advice:
Avoid Confrontation
Remember, you’re only a board member while you are attending a board meeting, and nowhere else. When you’re walking around the halls of the community or when you are at the pool, you are not. You are not conducting board business and therefore, you don't have any obligation to respond to questions or concerns. If you are confronted by an owner outside of a board meeting, we recommend acknowledging their concern, then asking them to submit it in writing to the property manager so it may be addressed at the next board meeting.
Conflict Resolution
In a homeowner’s association, before most covenant disputes can be litigated in a court of law, the owner or the association must first make a written demand for pre-suit mediation. This requires both parties to agree to a mediator and to meet and discuss a formal resolution before it turns into an expensive and time-consuming lawsuit. The job of the mediator is to facilitate a resolution that each side can live with. Absent a meditated resolution, either party may then file suit in a court of law. As for condominiums, condo owners and the association have the right to either engage in pre-suit mediation for most covenant disputes or to demand non-binding arbitration, a process more akin to litigation that is heard before an arbitrator appointed by the state agency that governs condominiums. If a party is not satisfied with the arbitrator’s decision, they may timely file a lawsuit to have the matter litigated in a court of law. When there is a dispute in an HOA between an association and a resident, the association may file a demand that the homeowner participate in mandatory mediation. As discussed above, in mandatory mediation all parties must sit down with a neutral mediator who will hopefully help facilitate a resolution. If the issue isn’t resolved through mediation, the mediator will call an impasse, then either party is free to file a lawsuit.
Representation
All associations and their board members have a right to legal counsel as to association matters, and we recommend that your association retain competent legal counsel. A good association lawyer will keep you informed of both the board’s rights and the individual unit owners’ or homeowners’ rights. As Condominium and HOA issues always hit close to home, they may often become heated and therefore, it is important to have an experienced association attorney at your side.
Peter S. Sachs is a Founding Partner of Sachs Sax Caplan P.L. Mr. Sachs is Board Certified in Condominium and Planned Development Law by the Florida Bar and through the years has handled a multitude of matters related to community associations (condominiums, cooperatives, homeowners, master and country clubs). He is one of the pioneers in the development of community association law and has earned a reputation as a staunch consumer rights advocate. Learn more about Peter here.