From the Capulets and Montagues to the Hatfields and McCoys, disputes between neighbors is a time-honored tradition.  The plea to the board is always the same:  the Association must take action against my neighbor for all the awful things they are doing.  The problem is that the plea often comes from both sides in the dispute and, equally as often, it is not clear whether the Association has any legal authority or obligation to choose sides.  This article touches on some of the issues a board of directors can focus on when determining whether the community association has an obligation to get involved when neighbors fight.  

Is There a Violation of the Governing Documents?

While this sounds obvious, it can be surprising how often a board assumes the association must take action when neighbors complain about each other.  One example is the common complaint that the association approved Neighbor One’s application to construct X (where X is equal to a fence, shed, or fifteen-foot-tall decorative water fountain) and X encroaches onto Neighbor Two’s property.  Neighbor Two demands that the association sue Neighbor One because “the association approved it!”  Sometimes the governing documents do require the board to enforce mandatory setbacks on lot construction but, more often, the architectural control provisions explicitly say that the association is only approving an application for aesthetic concerns.  Neighbor Two almost certainly has a private right of action against Neighbor One, but the association may not need to get involved.

Another example is the invasion of privacy complaint.  Neighbor Two accuses Neighbor One of spying on them, often with surveillance cameras.  While some associations do have specific provisions about surveillance cameras on lots, more often they are simply an exterior modification to be approved or not based on the aesthetics in the community.  If Neighbor One points their cameras at Neighbor Two’s property, it would be Neighbor Two’s right to file suit against Neighbor One, not the association’s.  

The bottom line is that the board of directors should always make sure that the neighbor’s actions violate the governing documents before responding.

There may be a Violation, but Should the Association Take Action?

At this stage, the board has determined that the alleged action violates the governing documents.  The next step is to see just how bad the violation is and whether it warrants enforcement action by the association.  I want to preface this discussion by reminding all directors that any enforcement action taken (or not taken) sets a precedent for future similar situations.

The perfect example of this dilemma is the noise complaint.  A director in a stacked condominium will inevitably get the call: “my upstairs neighbor has a pet elephant that parades across the floor at 2:00 a.m. every morning just to make me mad!”  Excessive noise in multi-unit housing is a legitimate concern and most condominiums have a provision dealing with excessive noise.  However, the board must determine whether they are dealing with a true noise violation or an overly sensitive neighbor.  

We have a few suggestions to help boards to help them make that determination – for a noise violation or any general “nuisance” complaint.  First, the board should ask the complaining owner to provide proof of the noise (or other violation) – this can be as simple as a smart phone video or a police report.  Second, the board should see if other owners can verify the noise.  Third, the board should see if the noise can be heard from the common elements.  While there is no easy answer, if the complaining owner cannot provide evidence, if no other owners can confirm the noise, or it does not involve the common elements the association may be able to stay out of it.

What Action Should the Association Take?

The board has determined that a violation exists and the association should take action.  The final question is what action the association is required to take.  First, the violation should be treated as any similar violation – the board should not react differently simply because there is an angry neighbor demanding suit.  If a noise violation warrants a $25.00 fine per verified occasion, that is what the board should do.  If, however, the violation is egregious enough that the association would usually bring a suit for injunctive relief, that is how the board should proceed.  Once a violation has been verified, in other words, the association must treat it as any other violation and not let the angry owner dictate the Board’s response.

Hopefully, the tips above will allow directors to avoid neighbor to neighbor disputes that the association has no obligation to take part in.  Please note that every dispute is different and, if the board ever has questions it should consult its property manager or attorney for further guidance.  Also, please note that claims of discrimination by owners, which are not addressed here, should be treated carefully as an association may be required to take action under nuisance provisions in certain situations.