Housing Counsel: Condominium Apathy Starts at the Top

Written by Posted On Sunday, 26 June 2005 17:00

Question: Before I purchased my condominium unit I was required to review the condominium documents and sign a form agreeing to abide by them. It was one of the reasons I bought in this community; I felt that the documents would be enforced.

Unfortunately, this has not happened. The response to complaints of violations of the rules and regulations is that the Board claims they have no way to enforce the violations. They may send out letters requesting that the violations cease, but if the letter goes unheeded, the Board states there is nothing more that can be done.

Could their lack of action be cause for a lawsuit? If they cannot enforce some of the rules, how can they require payment of condominium fees for management of the community? We have had three Board Presidents, so I do not believe it is just lack of interest in the community.

I wonder if it is misguidance from the legal counsel for the condominium or perhaps just poor advice from the management company. What do you recommend?

Answer: While the lawyer and the management company may be giving poor advice, these professionals can only make recommendations to the Board. Ultimately, the buck stops at the Boardroom table.

Most members of a community association Board of Directors are hard working and diligent. However, I have also encountered Boards of Directors that just do not care about the proper management of their Association. A unit owner may become a Board President because of an ego trip, or because he or she has nothing better to do.

Basically, you have three alternatives.

First, why don't you get active and try to be elected to the Board so that you can take the appropriate steps to enforce the rules and regulations of the Association?

Clearly, if there are others in your community who share your concerns, you should be able to mount a major political campaign, throw the current rascals out of office, and get a new slate elected which will be responsive to the needs of your community.

Your second alternative is to file suit against the Board for failing to enforce the Condominium documents.

It is my experience that every community association legal document contains language authorizing its Board to take action against erring unit owners. Indeed, most documents even permit the association to recoup its legal fees in the event it is successful in any litigation against the violating owner.

If the Board is not fulfilling its responsibilities, and is not enforcing the community documents, it would be my opinion that the Board is breaching its fiduciary duties to those who elected them to serve on the Board. You may want to consider calling a special meeting of the Association (through the proper procedures spelled out in your Bylaws) to alert the unit owners to these problems. Because apathy is so rampant in community associations, many of the unit owners may not even know about these problems.

Once they understand the problems, and if enough owners become concerned to try to take action, you can either file suit against the Board, or have new people run for office to serve as the new Board members.

Keep in mind, however, that many state courts will adhere to a concept known as the "business judgement rule." This rule (which does not apply in the District of Columbia) means that a court of law will not second guess what a board of directors does, even if the board has made a mistake, so long as there are no egregious problems -- such as conflicts of interest or stealing association funds. Basically, many courts throughout the United States have taken the position that service on a community association board of directors is voluntary and unpaid, and thus that board should be given sufficient leeway to govern itself -- without having to be concerned about constant oversight by the judicial system.

I do not recommend that unit owners stop paying their association fees just because they perceive there is a problem. Each owner has an obligation to pay his or her share of the community expenses. By not making the monthly or quarterly payment, you are only hurting yourself.

But, however, that does not excuse the Board for not taking appropriate action. The case law throughout the United States is quite clear that a Board of Directors has to be uniform in their enforcement activities. They cannot be selective, nor can they be arbitrary. In other words, if unit owner X and unit owner Y are involved in the same violations, it would be a valid defense by unit owner X if the Board only went after that owner, and did not go after all of the violators.

Ultimately, the courts have the authority to force the Board to enforce the rules and regulations of your Association.

However, litigation is time-consuming and expensive, which should only be used as a last resort. I would prefer to use the good old fashioned political process, and try to get on the Board yourself.

I have consistently advised unhappy community association owners that if they are dissatisfied, they really have only three choices:

  • get elected to the Board and try to make changes;

  • sell and move to a single family house, or

  • accept the situation and "get over it."
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Benny L Kass

Author of the weekly Housing Counsel column with The Washington Post for nearly 30 years, Benny Kass is the senior partner with the Washington, DC law firm of KASS LEGAL GROUP, PLLC and a specialist in such real estate legal areas as commercial and residential financing, closings, foreclosures and workouts.

Mr. Kass is a Charter Member of the College of Community Association Attorneys, and has written extensively about community association issues. In addition, he is a life member of the National Conference of Commissioners on Uniform State Laws. In this capacity, he has been involved in the development of almost all of the Commission’s real estate laws, including the Uniform Common Interest Ownership Act which has been adopted in many states.

kasslegalgroup.com

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