Author: Bobby Nails

Legal Considerations for the Use of Volunteers

One of the perks of living in an active community association is getting to know your neighbors.  And what better way to foster a sense of camaraderie than by volunteering alongside others to better your neighborhood.  Volunteer opportunities can come in many forms: from planned day events tidying up the landscaping on the common property to weekly impromptu gatherings picking up trash on the grounds.  While volunteers can be an enormous boon to a community association, it is important that a board ensure that participation and activities are handled in a safe and legal way so that neither association nor owner incur any unwanted liability.

Starting with the Basics:  Volunteer or Employee

When considering the use of volunteers, it is important to understand whether they will be considered employees or volunteers when they work on association tasks.  This might seem like a simple distinction:  employees get hired, paid and fired while volunteers… well… volunteer.  In Georgia, the determination is not quite so simple.  In a 1997 opinion, the Georgia Court of Appeals decided that a man who volunteered his time without pay for the Housing Authority of Cartersville was actually an employee, not a volunteer, because: (1) he performed a valuable economic service to the City, and (2) the City could direct the “time, manner, method, and means” of his job duties.  Housing Authority, City of Cartersville v. Jackson, 226 Ga. App. 182, 486 S.E.2d 45 (1997).  As an employee, the man was entitled to certain protections and coverage under the City’s workers’ compensation policy when he was injured on the job.

The Housing Authority case is an extreme example of a volunteer acting like an employee.  Owners who participate in one-off volunteer events will almost certainly not count as employees.  However, the determination might change if a volunteer performs a more valuable service like regularly mowing the common property or cleaning the entry sign and clubhouse.  The easiest way to avoid having a volunteer labeled as an employee is to ensure that the volunteer is given wide latitude in how they perform the work and that the association does not try to have them take the place of a paid contractor or employee (e.g. we had a landscaper, but to save money the association took Johnny Lawn up on his offer to mow weekly for free).  If an association is unsure whether a particular service or event will result in volunteers becoming employees and, therefore, potentially requiring workers’ compensation insurance, the Board should reach out to its attorney and insurance agent to determine the risks.

Watch out for that Tree!  Volunteers and Injury

An association generally owes its members, owners or occupants a duty of care to avoid injuring them while on association property and to protect them from hidden dangers on the property that the association has knowledge of (or should have knowledge of through reasonable inspection).  This duty can be heightened significantly if an association invites third parties on its property.  The first thing an association should consider when planning a volunteer event is who will be invited:  owners only or “outside” volunteers?  If outside volunteers will be involved, the association must remember that they may be owed a higher duty of care than owner volunteers.

There are several things an association can do to limit its exposure to liability to volunteers who are injured on association property.  The first is to make sure that the property where the volunteer event will be held has been recently inspected to insure that there are no hidden dangers or “mantraps” that might cause injury.  The board should also check the language of the governing documents, which often includes provisions restricting an owner’s right to sue an association for injury while on common property.  Finally, having all volunteers sign a brief indemnification or waiver document providing that they will not sue the association for injuries obtained while volunteering on its behalf will further limit the association’s exposure if someone is injured.  It is also a good idea to check with an association’s liability insurance provider to ensure that the event will be covered under its policy.

When the potential legal issues associated with volunteer use are investigated and accounted for before problems arise, the association will have put itself in the best possible position.  If a board ever has questions about the use of volunteers and potential risk to the association, it should contact its community association attorney to ensure that the association will reap the rewards of volunteer service while avoiding the pitfalls.

Planning for the Future of Technology

Elon Musk once said that the greatest existential threat to humankind is the development of an artificial intelligence that would supplant, enslave or otherwise terminate our frail, organic bodies.  Until that day arrives, community associations will have to deal with the rapidly changing technological issues that have become a part of everyday life.  Success on that front comes from ensuring that the association, its board of directors and property managers are ready before a new technology becomes an issue.  The purpose of this article is to take a brief look at a few relatively new technologies that Associations are already dealing with.  

Solar Panels

While not really a new technology, tax credits, leasing options and decreased cost have made solar panels affordable for homeowners looking to help the environment or offset energy bills.  For community associations, they become an issue when an owner submits an application for their installation on a home or in a yard.  Although panels have gotten much more aesthetically pleasing in the recent past (some companies even offer shingle panels), a Board’s response to its first application can lead to legal fights over whether, where and how such panels can be installed.  

An owner’s right to install solar panels is already protected by law in a number of states.  Georgia has seen proposed legislation discussed in committee the past several years and it seems likely we are heading in that direction.  It is unlikely that any law would require community associations to allow any type of solar panel in any location, so creating express rules and guidelines about installation, instead of just saying “no”, will put an association in the best position to ensure aesthetic harmony and continuity of enforcement regardless of any change in the law.

Electric Vehicle Charging Stations

As with solar panels, charging stations have been around for a few years now.  However, each year the sale of electric vehicles has substantially increased in the United States and what was once a fairly unique request is becoming more commonplace.  Most governing documents already require association approval for a charging station (whether as an exterior modification or because they must be placed on common property), however many associations do not have a good system in place to deal with the problems that multiple stations may bring.  A proactive association should consult with an electrician to determine what the effect of multiple charging stations may be on the Association’s electrical grid.  Knowing what costs will arise as the number of stations increase will better allow the Association to pass those costs along in a way that avoids the first owner being charged less than the tenth owner whose station requires an electrical overhaul.  In addition, some associations may benefit from common charging stations that owners can utilize on a shared basis, which can be more efficient than individual stations but which come with their own enforcement problems (as with any shared resource).  The bottom line is that Associations should review these issues in advance, so they are ready when the applications come.

Camera Monitoring Systems

While security cameras are nothing new, data review algorithms and cloud storage have allowed their use in locations and ways not possible even five years ago.  This new breed of system comes with recognition software that automatically reviews all video footage taken and creates a database allowing anyone with access to search for a particular type of car, license plate number, or person.  While these systems can be incredibly helpful in enforcement actions, there are other concerns a board should consider prior to implementation.  For instance, if the data is stored in the cloud, does the association own it or can the company sell the footage to third party vendors at its discretion?  In addition, it is worth asking the question “should the association have this type of data at its disposal?”  The answer may be yes in your community, but some owners may balk at the idea that the board can theoretically track every time they come and go from their home.  Whatever the decision, the board should make sure there are good policies in place to control who can utilize the data and in what circumstances to avoid misuse of a powerful tool.

Mobility Rental Services

Everyone has seen them:  green, blue, red and black scooters and bikes outside of restaurants, parks and bars (or in the middle of the sidewalk blocking everyone’s path).  These scooter and bike rental services are great for cheaply travelling short distances, but they can have negative impacts on community associations:  especially those located in areas with a lot of foot traffic and nearby attractions.  Many local governments, and the companies themselves, are attempting to regulate when these scooters and bikes can be used and, as importantly, where they can be stored, but these measures often do not help community associations that have private property.  Most covenants probably have language that allows the association to pass rules about storage of these types of vehicles and specific rules help create clear expectations for owners who want to utilize them in a responsible manner that won’t interfere with other owners’ use of the property.

The instances above are just a sample of the intersection of community associations and technology in the 21^st century.  No doubt, ten years from now there will be a whole new crop of issues that aren’t contemplated today.  The best bet for any community association is to keep an eye towards the future to insure they aren’t left in the past.

Mediating Success

Enforcement actions of any kind can cause stress not just for the Board and owner involved, but the community at large.  It is not surprising:  making an owner do something with their property that they do not want to do seems to bring out a level of stubbornness you rarely see outside of politics.  Add to that the fact that, technically, every owner is footing a portion of the bill for enforcement and you have a cocktail for discord.  For these reasons, pursuing compromise, where possible, can not only save an Association time and money, but also save the feeling of comradery that can benefit a community.  Below are some examples from my own practice where a Board and property manager successfully avoided full-blown confrontation through creativity and effort.

Extinguishing the Fire Before it Spreads

Fences, of all things, were a point of contention in this association.  The covenants explicitly prohibited them, and the Board had been faithfully enforcing the same.  The community appeared split on the issue: some owners wanted them for children or pets while others enjoyed the aesthetic of an “open” neighborhood.  Inevitably, one owner went ahead with the “better to ask forgiveness than permission” approach and built a fence.  As you can imagine, this enraged not only those owners who didn’t want fences but also those owners who had requested fences, been denied, and complied with that denial.  After initial attempts to get the fence removed met with flat refusals, counsel was brought in on both sides and the matter seemed destined for a lengthy and expensive trial.

Just before the Board made the call to file suit, we decided to offer one last chance at a face-to-face meeting which had not yet occurred.  The owners of the fence agreed, so long as counsel wasn’t present, and the meeting was set.  It was a resounding success.  Prior to the meeting, the Board had decided to propose to the owner that both sides let the membership of the association decide how to proceed in the form of proposing and conducting a vote on an amendment that would alter the strict covenant and allow fences subject to architectural controls.  The owner agreed, the enforcement action was put on pause, and an amendment was drafted and put to a vote.  In the end, the amendment did not pass and, true to their word, the owner took down their fence.  Despite that, the Board later told me that the owner in question had become a real asset to the community through volunteer work and that allowing the membership to decide instead of the Board had eliminated the ill-will that had begun to accrue during the enforcement process.

The Last-Ditch Effort

A fair-sized community had been in development limbo for years:  developer after developer had gone belly-up without finishing buildout.  Finally, the market began to recover and a final developer was putting the finishing touches on the last phase.  As this was going on, a several-years-long lawsuit was headed towards trial.  A simple assessment collection matter had exploded when the owner brought counterclaims regarding a technical defect in the chain of developer title from years earlier that cast doubt on the title of every lot in the community and almost certainly would have stalled, if not stopped, the final buildout – no small matter and not great for property values.

A few months before trial, the court decided to order the parties to mediation.  Neither side wanted to: the Board feeling that it was a waste of money and the owner maintained that he “wouldn’t give an inch”, but you can’t argue with a court order.  The mediator split the parties into separate rooms after opening arguments.  She returned to our room ruefully shaking her head after presenting our initial (and, in my opinion, very reasonable) offer to the owner.  She said, “I’ve never done this in ten years of mediation, but I don’t think there’s any point in wasting any more time – the owner is unrealistic, and his counsel has no control.”  Both sides left less than half an hour after they’d arrived.

“But wait,” you say, “this is supposed to be a mediation success story!”  Three weeks later, the day before trial, opposing counsel called.  The owner had a “family emergency” and, rather than reschedule the trial, wanted to take up the Association on its settlement offer if it was still open.  It was, and we formally settled an hour later.  If the mediation had never occurred, the framework for that offer would not have existed and both sides would have had to pay for a trial and live with the uncertain result.  The mediation may not have worked while we were there, but it provided the base for a settlement shortly thereafter.

The takeaway from these successes is that there is something about face to face meetings that can result in settling issues without the acrimony of trial.  While it will not always work and is sometimes even inadvisable, a Board should always at least consider advocating for in-person mediation or negotiation.  At the very least, you get the chance to size up the owner and, at best, you resolve the issue and gain a new asset for the Association.

The Covenants Versus the Code

From enticing code enforcement officers to enforce violations in the community to ensuring that a community association satisfies all maintenance requirements, managing an association’s relationship with the county can be a difficult job.  One issue in particular is brought to me on a regular basis for review:  how does a community association’s obligation to the county affect its relationship with its members when a county ordinance appears to contradict the terms of the covenants?  As further explained below, a difference between the covenants and a county ordinance generally does not result in as big an issue for the Association as an owner or board may think.  One quick note on terminology:  I use “county” throughout even though the same rules generally apply to cities and sometimes even the state and I use “ordinance” to describe the body of local laws even though they can sometimes be termed rules, regulations or codes.  

When an Ordinance Imposes a Greater or Lesser Requirement than the Covenants

A good example of a county ordinance imposing a greater requirement on an owner than the covenants is a situation where a feature on a residence is no longer “up to code” even though it is maintained in compliance with the covenants.  Since an association only has the legal authority to enforce the terms of its covenants, ordinances imposing greater requirements must be enforced by the county.  There are exceptions to this rule typically relating to covenants requiring that all residences be code-compliant or where the non-compliance creates insurance or safety issues, so it is always good to get a legal opinion.  

On the other hand, sometimes the covenants will restrict something that the county allows.  Once again, this often has to do with maintenance or landscaping requirements but can also stem from other things (e.g. fireworks, street parking).  Unless otherwise provided for in the ordinance or under Georgia law, an association has every right to enforce covenants that are more restrictive than county ordinances.  In these cases, a board can just remind an owner that they are bound by the covenants in addition to the county ordinances and they must abide by both.

When the Covenants Appear to Contradict a County Ordinance

Unlike the situations above, this has more to do with an ordinance that creates an obligation for the association while the covenants say that the exact same obligation is the responsibility of the owner.  The easiest way to explain this scenario is through a specific example.  A number of years ago, Forsyth County passed a storm water runoff ordinance requiring that community associations maintain all storm water runoff facilities in a community whether located on common property or owner property.  The obvious problem is that, especially in single family detached communities, many covenants expressly provide that an owner is responsible for all maintenance on their lot, even if that is maintenance of storm water runoff facilities.  

The issue is brought to me when an association tells an owner that maintenance needs to be done to a stormwater runoff facility on their lot, the owner contacts the county and is told that the association is responsible for maintenance of the stormwater runoff facilities.  Not surprisingly, the owner often goes back to the association with the county’s statement and refuses to provide the maintenance.

Here are two accurate statements:  (1) the county can hold the association responsible for the maintenance of any stormwater runoff facility in a community and (2) the association can still require an owner to provide part of that maintenance in accordance with the terms of the covenants.  This is because there are two legal relationships involved.  The first is the relationship between the association and the county and is set by the ordinance.  The second relationship is between the association and the owner and is set by the terms of the covenants.  Even though the association is liable to the county if the maintenance is not performed, it still has the legal right to require the owner to provide any maintenance required of them under the covenants.  In short:  when a county ordinance requires an association to maintain something in the community the association still has a legal right to require an owner to provide that maintenance pursuant to the covenants.

In conclusion, an association typically has the legal right to enforce the terms of its covenants against an owner even where those terms differ from county ordinances.  In addition, it generally has the right to require an owner to perform a duty that the county assigns to the association as long as the terms of the covenants allow the same.  As always, there are exceptions to every rule and a board should always contact an attorney to get an opinion when this type of question arises.

How to Create a Championship Team for a Community Association

Football season might be over, but the work isn’t done.  Whether your team had a great year or a terrible one, a good coach is always looking ahead to the next season.  One of the biggest concerns in preparation for the next year is to draft players that will shore up weaknesses or compliment strengths.  The same is true for a community association.  A strong board of directors relies on a host of service providers to thrive each season.  Property managers, insurance brokers, landscapers, contractors and more all contribute to a community association’s continued success.  It is important for directors to ensure that each service provider is a good fit for the team and performing as it should.

The first step towards a deep bench is to take stock of the association’s current roster.  Have current contracts been reviewed to ensure terms are still fair?  Have prices for services increased?  Are the contracted services being provided?  Are there issues that have been raised over the preceding year that should be addressed with a particular provider?  It is important to remember that this is not the same as “cleaning house” and picking all new vendors, which could lead to chaos and dropped balls.  Better to look at this review as an opportunity to strengthen existing relationships where possible.  

Next, the Board should consider what to do about weaknesses identified during its review.  Remember that service providers have businesses to run and, generally, want to do right by their clients.  Sometimes all it takes to resolve a problem is for the board or property manager to bring the issue to the service provider for resolution.  While phone calls can be a great way to quickly resolve minor issues, written notice is usually a good idea so the underlying issues are documented in a way that is easy to track (and, if necessary, provide as evidence in the future).  Good faith attempts at settling issues will not only save the association the money and time required to find a new provider, but it could result in a strengthened relationship with its current one.  A good coach lets players know when expectations aren’t being met and helps them get back on track – the same can be true when an association works with its providers.

That said, at some point a board will encounter a service provider that cannot or will not provide the level of service the association needs.  This can be because of excessive turnover, a company not growing as fast as its client base, or a simple difference in expectations that cannot be resolved.  Boards should understand that getting out of a contract can be a difficult process.  Georgia law generally upholds provisions that have specific notice or timing requirements for termination of a contract.  In reviewing existing contracts, or entering into new ones, a board should pay particular attention to language that provides the requirements for terminating the contract.  It is not uncommon to have automatically renewing contracts, but the board should ensure that there is a way to exit the contract mid-term and understand what is required for that process.  Attempting to end a contract outside of the explicit termination provision often requires a lawsuit that can cost thousands of dollars and take months to resolve.

The final step in securing a winning team for the next season is to bring in the talent.  When looking for new service providers there are a few rules of thumb to follow.  Ask for references so the board can speak to a few of a provider’s other clients about the services offered.  An association’s property manager is also a good source of information as they may manage other associations that use the same company.  A board should make sure it receives enough bids for a particular service to determine reasonable costs and contractual terms.  Multiple bids also protect the board from accusations of “sweetheart deals” or lack of due diligence from owners.  Always read the contract!  I know they are long, boring and full of legalese, but they also contain all the relevant information about the relationship.  Understanding what the contract says – especially as it relates to services provided and contract termination – will save the board a lot of potential grief in the future.  It is not uncommon for a contract to be referred to an association attorney for review when there are questions about it or just to ensure it is even-handed.  

Taking the steps above will not guarantee success, but it will put the association in the best position possible to face another season. 

Confusing Maintenance Responsibility with Insurance Requirements

I was once approached by the property manager of a condominium association with a  simple question:  “there is a leaky pipe between two units in the condominium and the Board wants to know who has to repair it.”  A quick review of the covenants showed that the pipe was almost certainly the maintenance responsibility of an owner.  Ten days later I got another email from the same association.  The Board wanted to “confirm” that they did not have to allow the unit owner to file a claim under the master insurance policy for over $20,000.00 worth of damage “because you said the pipe was the owner’s maintenance responsibility.”  

I learned an important lesson that day:  always make sure you have all the facts when responding to what seems like a simple question.  The board for the association learned an even more valuable one, however:  that maintenance and insurance questions often have very different answers.  The condominium association above ended up being lucky:  they managed to file a claim for the incident with the condominium’s insurer just before the deadline ran.  Some associations are not as lucky, which is why it is important for every director to understand the profound difference between maintenance and insurance requirements.   

In condominiums, generally speaking, the Georgia Condominium Act requires the association to obtain a master insurance policy for all portions of the Condominium, including all common elements and units, for the benefit of the association and each owner.  Other associations have insurance requirements dictated by the covenants instead of Georgia law, but often fall along the same lines as maintenance responsibility.  The problems arise when a board looks only to the maintenance provisions, which assign maintenance between the owners and the association, to determine whether or not to file an insurance claim.  Because many policies are for the benefit of the owners as well as the association, an association is required to allow an owner to file a claim with the association’s policy if the damage is covered by the policy and the cost of repair exceeds the deductible – this holds true even when a damaged area is an owner’s maintenance responsibility.  

In the situation above, for instance, the pipe was an owner maintenance responsibility because it served only one unit and the maintenance provision assigned this type of pipe maintenance to the owner of the benefitted unit.  However, because the master insurance policy covered all units in addition to the common elements, the master insurance policy potentially covered the damage caused.  The association mistakenly assumed that because the maintenance responsibility fell to the owner, the board could prohibit the owner from making a claim under the master insurance policy.  This was incorrect:  because master insurance policies are generally held in favor of the association and owners, it is each owner’s right to have the association file a claim under the master policy if the damage is covered and the cost will exceed the deductible.    

There are a number of reasons why an association would want to limit an owner’s ability to make a claim.  A board might think the owner “doesn’t deserve” to get bailed out by the master policy since it is their maintenance issue and all owners pay the policy premiums.  The board may be concerned that filing another claim will increase those insurance premiums or even cause the association to get dropped by the insurer.  Whatever the reason, if Georgia law or the covenants requires the association to carry a master policy in favor of all owners, the association is required to allow a covered claim to be filed upon request by the owner.

The potential liability for failure to allow an owner to file a claim can be catastrophic.  If the association above had failed to submit a claim in time, the association would probably have been on the hook for any damage not covered by an individual unit owner’s policy.  In addition, failure to file a claim for covered damage within any reporting deadlines set by the insurance provider could constitute negligence on the part of the board and can lead to damage beyond the simple cost of repair of the issue.  

Maintenance and insurance questions, and the interplay between the two, can get complex in a hurry.  Since there are strict timelines involved for reporting damage to an insurance carrier, it is extremely important to seek legal advice as soon as damage occurs.  Avoid the horror of association liability by always knowing the difference between maintenance and insurance requirements and understanding when a claim must be filed and who can file it.

Legal Edition

The weather is good and neighbors are out and about.  In this season of blockbuster movies what better way to entertain a community association than with a blowout soiree.  From pool parties to July 4^th cookouts, neighborhood events are a great way to foster community spirit, friendships and interest.  Before allowing the use of association property and funds, it is important to consider the legal ramifications and steps that can be taken to avoid turning a summer feel-good hit into a horror film.  This article is concerned only with those parties that are officially sponsored by the Association – not impromptu parties thrown by owners on owner property.  While nowhere near an exhaustive list of things that should be considered for neighborhood events, below are several areas that are common concerns or causes of liability for a community association.

The Who’s Who of the Party

The covenants generally provide a community association with certain legal protections from members who are injured on association property.  This protection generally also applies to the guests, tenants and occupants of members.  However, if an association issues invitations to non-members its liability increases.  This is because those non-members, in most cases, become “invitees” and are afforded greater protection under Georgia law.  They can hold the association liable for damages from injuries on association property that a member may be precluded from recouping from the association.  This holds especially true if the association charges non-members admission to the party, in which case the association takes on a whole host of liabilities it would not have otherwise.  Also keep in mind that, while it is relatively easy to hold members responsible for damage to association property, it takes a lot more work to do so for non-members who are not bound by the covenants.

The best advice to minimize liability is to keep the event members only.  If an association feels it must invite non-members it should get an opinion from its counsel as to the best way to mitigate liability and also contact its insurance provider to ensure that hosting an event to which non-members are invited is covered by its liability policy. 

Location, Location, Location

If a community association party will utilize an association’s amenities, the board of directors should ensure that the number of people estimated to attend will not exceed any relevant usage limits – especially if an association pool or clubhouse will be part of the festivities.  Any property to be used should be inspected prior to the party to ensure there are no dangerous conditions that should be remedied before guests arrive.  If the association has decided to allow non-members, it may need to make accommodations in accordance with the American with Disabilities Act to allow the disabled to utilize the facilities.  Will the event include use of private or public streets?  If so, the association should ensure that usage will not violate any state or local laws or ordinances.  

Pass the Hot Dog but Hold the Shots

If association funds are being used and/or the association is contracting for food and drinks, it becomes potentially liable.  Community associations should consider food allergy issues – especially for food being served to children.  In addition, if association funds are being used then the association should ensure that the foods being served include something that everyone can partake in no matter their dietary restrictions based on medical issues, political ideologies, or religion.

The best bet is not to serve alcohol.  Serving alcohol in Georgia requires a license so the Association would either have to obtain one or hire someone to serve the alcohol that has a license.  In addition, the association could be liable if minors are served alcohol or if any person is over-served and causes themselves or others harm during or after the party.  If an association insists on alcohol at a party, the board of directors should coordinate closely with its attorney and insurer to make sure there are procedures in place to ID people getting drinks, to keep people from having too many drinks, and to keep people from driving after they’ve had too many drinks.  An association can lessen this liability by allowing people to bring their own drinks, but it would still be a good idea to have people at the party watching to make sure no minors drink and intoxicated members do not drive.  

All in all, parties can be a great way to add value to a community and bring neighbors together.  As long as the Board considers and accounts for potential liability, a community association should not be afraid to host a box office hit of a party.

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.

Compromise Your Way Through Conflict

In this day and age, it can seem like compromise is a dirty word indicating a failure to stand by one’s position.  In the community association context, however, compromise is often the key difference between warring neighbors and a peaceful neighborhood.  Knowing when and how to compromise on disputes between homeowners and community associations is a great way for boards of directors to avoid prolonged disputes and costly litigation.  This article will briefly examine how an association’s governing documents can provide a helpful framework for reaching a compromise with an owner.

There are a number of different governing document provisions used to encourage or require compromise when an owner has an issue with their association.  They are often referred to as Alternative Dispute Resolution provisions (“ADR provisions”), and Georgia courts generally uphold their use and enforceability in a community association’s covenants.  Below are a few types commonly found in community governing documents:

Violation Hearing Requirements

One of the most common dispute resolution provisions, many community associations are required to give an owner the option of meeting with the board of directors to discuss an alleged violation prior to the imposition of fines or suspension of amenity use.  These hearings can often be seen as a waste of time when the violation is obvious, but keep in mind they serve the purpose of giving the owner a forum to “vent” their frustrations and also make the association look reasonable in the eyes of a judge or jury if the issue goes to trial.  Owners typically must request a hearing in writing and, at the hearing, can present evidence and witness testimony.  

Good Faith Communication Requirements

This type of provision can come in many forms, but generally requires that, prior to filing a lawsuit, an owner provide the community association with a written communication setting out the allegations or defenses the owner believes they have in a good faith effort to avoid litigation.  While it is easy to look at this step as just a box to check, keep in mind that this written notice can be a great place to start negotiations if the owner is not being unreasonable.  In addition, such provisions often require the owner to allow for an association response prior to filing suit, which buys the association some time and allows both sides a moment to “cool off” before spending further money on the dispute.

Mediation Requirements

Some covenants require an owner and the association to undergo mediation prior to filing suit.  Mediation is a non-binding process where sides present their positions on the conflict to a third-party mediator who attempts to negotiate a compromise between the parties.  Even though mediations are technically non-binding, if a compromise is reached the parties can create a written agreement that makes the result binding.  Even if the mediation is not successful, arguing the association’s position in front of a non-biased person can provide a good indicator on how a judge or jury might view the association’s case and whether or not the association appears to be acting reasonably to someone who is not a member of the community.

Arbitration Requirements

An arbitration clause is probably the least common ADR provision found in community association governing documents.  Arbitration requires both sides in a dispute to present their arguments to a third-party arbitrator who then makes a decision to resolve the dispute that is binding on both parties.  In short, arbitration is like a private trial that takes place outside of the courtroom.  Arbitration can provide a good forum for resolving community association disputes since the arbitrator can be chosen based on their expertise in the area.  However, given that the cost ends up being similar to an actual trial, an arbitration is not necessarily a good option if compromise is the goal.

If a community association’s governing documents lacks an ADR provision, the board may propose adding one to the covenants through an amendment adopted by the members.  If the board is unsure of which type of provision would work best in their community, the directors may be able to create a framework for compromise requesting that owners follow certain notice procedures prior to filing suit against a community association through a board resolution.  While this type of resolution may not be binding, simply by creating a framework for dispute resolution a board is showing the neighborhood that the association truly desires to pursue dispute resolution outside of the courtroom.  In either event, the board of directors should consult the association’s attorney to determine the steps the community association needs to take in order to adopt the ADR provision.

The bottom line is that disputes between owners and their community association can be costly, are often stressful for volunteer board members, and can create levels of neighborhood disharmony that are impossible to ignore.  Resolving disputes through ADR provisions may not result in a community association getting everything the board wants every time, but if a board views ADR provisions as a good chance to find compromise, using these alternative dispute procedures will reflect well on the association and could save a community money and ill-will in the long run.

Striking a Balance with Use Restriction Enforcement

When Niccolo Machiavelli posed his famous question in the 16^th century he was considering leadership in the often-bloody struggles of Renaissance Italy.  Anyone dealing with a homeowner’s unapproved chain-link fence or bright pink house knows that community association leadership is not as far removed from that distant past as we sometimes like to think.  One of the toughest jobs for a board of directors is to enforce the use restrictions, architectural guidelines, and rules that help maintain the aesthetic appeal of a community association.  Since it is impossible to please all people, this article looks at the legal requirements a board of directors must consider when dealing with owners who breach the terms of the governing documents.

Georgia law allows a community association to enforce restrictive covenants governing everything from exterior paint colors to leasing unless: (1) the use restriction is against public policy (think restrictions on political signs or discriminatory restrictions) or (2) the board’s enforcement against an owner is “arbitrary and capricious.”  There are a handful of cases providing information on arbitrary and capricious actions by the Board, but they agree that a board of directors cannot enforce a restriction against an owner when it has failed to enforce the same restriction against other owners with similar violations in the past.  Allowing that type of enforcement would be unfair to the owner being targeted.  It is for this reason that directors are advised to enforce use restrictions evenly or risk losing the legal ability to enforce them at all.  

On the other hand, boards that take too rigid an approach to enforcement run the risk of wasting association resources or, worse, being removed from power by a mob of angry homeowners.  What then, is a board to do:  attempt to be “loved” by never angering owners with enforcement actions and risk losing the right of enforcement or be overly “feared” by dealing strictly with any infraction at risk of ouster?  Fortunately, Georgia law and governing documents give the board flexibility in enforcement.  Most associations have different tools to deal with a violation:  levying fines, the right of “self-help” and injunctive relief suits are the most common.  

The balancing act requires a board of directors to determine which violations require more serious enforcement actions.  In a community with a leasing cap and a waitlist fifteen residents long, an owner’s repeated leasing violation may require everything from fines through an injunctive relief lawsuit to get a court order stopping future leasing.  On the other hand, an owner who fails to pick up dog waste once may only warrant a small fine or even a simple notice of violation letter with no further sanction unless the violation occurs again.  Even the fines can be a means of striking a balance:  a board is usually free to levy “reasonable” fines based on the violation.  Exterior construction without approval may warrant a heftier, one-time fine while leaving a trashcan at the street after trash day may call for a small, per-violation fine.  

While flexibility is allowed, the Board must remember that this does not give the association carte blanche to deal with every violation in drastically different ways.  To avoid the arbitrary and capricious pitfall, similar situations must be dealt with in similar ways.  For instance, if the board decides that a leasing violation warrants a lawsuit, it would need to be prepared to file suit in future situations with similar facts.  Likewise, a court would probably not support a board’s decision to levy a ten dollar fine for dog waste against one owner while levying a twenty-five dollar fine against another owner with the same violation.  In order to avoid inadvertently dealing with similar situations in different ways, the board of directors should consider working with its property manager and attorney to come up with an enforcement policy.  It need not be overly detailed, but it could lay out some general notice procedures and basic fines for common violations.  Following that policy can give the board substantial protection against an arbitrary and capricious enforcement defense.

Striking a balance between overly aggressive and too lenient use restriction enforcement will never be easy, but a board of directors that has a policy and remembers to use common sense in dealing with violations can certainly find success.  Machiavelli concluded that it was best to be both feared and loved, but if a leader had to choose one over the other it was better to be feared.  However, before embracing such a “Machiavellian concept,” a Board should also keep in mind that, at the end of the day, they will continue to live side by side with the same neighbors they take enforcement action against.