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.
