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Friday, June 29, 2018

Unintended Consequences of Rule Enforcement


 
They say that good fences make good neighbors. In the condominium context, good rules make good neighbors by setting forth what constitutes acceptable
conduct and lending a certain level of predictability to community living. However, the rules, when enforced, can also lead to angry unit owners who feel unfairly restricted from acting freely in their home or on the property they share with others. This can become especially problematic when such feelings lead to contentious disputes between unit owners and either the association and/or property manager. What is the recourse when tensions rise to such a degree that a unit owner engages in hostile or abusive conduct in response to rule enforcement?

They say that good fences make good neighbors. In the condominium context, good rules make good neighbors by setting forth what constitutes acceptable conduct and lending a certain level of predictability to community living.

By definition, condominiums require individuals—who, otherwise would likely be strangers—to live in close proximity to one another and share land and possibly more, such as walls, utilities, stairways, hallways, etc. So that this may be successful, each unit owner’s interest is taken subject to the limitations set forth in the condominium’s governing documents which address conduct within common areas as well as the interior of individual units. For example, most condominiums prohibit any conduct that causes a nuisance or that otherwise negatively impacts unit owners’ ability to use and enjoy the property, such as playing loud music late at night or smoking a cigarette in a unit or even in front of a shared exterior entrance. It could also include improperly disposing of trash and recycling or failing to maintain the property to acceptable standards. Depending on the nature of the conduct and the layout of the condominium, the impacted or complaining party may be another unit owner or it may be the association as a whole.

To protect the rights of the association and all other unit owners effectively, rules must be enforced. To that end, an offending owner can be fined for violative conduct. In some instances, it may be the board that communicates with the owner, or it may be the property manager’s responsibility to enforce the rules. Regardless of the messenger, however, a unit owner who receives a warning or fine for a violation, may feel that they have been treated unfairly or that their rights as a property owner have been unlawfully impeded upon, and this can lead to contentious disputes. In the worst cases, unit owners who feel wronged may resort to harassing behavior toward members of the board and/or property management. When tasked with the difficult task of rule enforcement, it is important to know when such behavior rises to the level where it is possible to obtain a civil harassment order.

The law concerning harassment varies from state to state, and the standard can be quite high because protective orders can have significant collateral consequences for a defendant. In Massachusetts, a protective order against civil harassment may be sought pursuant to Massachusetts General Laws Chapter 258E. Under the statute, a civil harassment prevention order is appropriate only where an individual has committed three or more acts of willful and malicious conduct (1) which were aimed at a specific person, (2) with the intent to cause fear, intimidation, abuse, or property damage, and (3) which actually caused said fear, intimidation, abuse, or property damage.

Often, the easiest step in the analysis to overcome is whether the conduct was “aimed at a specific person.” Even if acts are made toward property, a court will look at the timing and scope of the conduct to determine whether the underlying purpose of the conduct was to target a specific person. As to the third step, the court will consider the cumulative pattern of harassment as opposed to the results of each individual act separately. Whether the acts were willful and malicious, however, may be more difficult to establish.

For a court to grant a harassment prevention order, the actor must have actually intended to cause fear, intimidation, abuse, or property damage, and the conduct must have been sufficiently malicious. The only directive provided by the statute is that malicious conduct is “characterized by cruelty, hostility or revenge.” Thus, courts must make a fact-based, case-by-case determination. It is insufficient for the actions to have been merely disruptive, upsetting, or logistically and financially problematic. On the other hand, verbally attacking someone, threatening one’s job, threatening to relentlessly harass, refusing to leave an area, and physical aggression (or the threat thereof) may be deemed intentionally malicious sufficient to warrant a protective order. However, each situation will be unique, and there is not bright line rule.

Of course, the hope is that circumstances never reach the point where a board member or property manager needs to seek a harassment prevention order from the court. Because disputes with unit owners often arise out of a lack of understanding, misinformed expectations, or poor communication, it is important to maintain an open dialogue regarding rules and possible violations and establish a fair and transparent procedure for addressing noncompliance that you can apply with consistency for all unit owners.

Originally posted June 30, 2018 on tlawmtm.com: http://lawmtm.com/unintended-consequences-rule-enforcement.html

Janelle received her J.D. from Northeastern University School of Law where she was Editor-in-Chief of the Northeastern University Law Review and a teaching assistant for the property law and legal research and writing programs. During law school and prior to joining Moriarty Troyer & Malloy LLC, Janelle was a federal judicial intern for the Honorable Denise J. Casper, U.S. District Court, District of Massachusetts.

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