Condominium living is often misunderstood and not always easy. Unit owners are not always happy with how the board and, if applicable, the property management run a condominium. Problems between neighbors are inevitable when a group of strangers, making up a wide variety of personalities and perceptions, live together. Noise complaints and other disagreements between neighbors have, and always will be, difficult territory for enforcement and intervention by the association. There is a fine line between the association’s duty to enforce rules and overstepping this duty and policing relationships and behaviors between neighbors.
UNIT OWNER COMPLAINTS
It is important first for the association to investigate the complaints made by the unit owners involved and to understand the source of the conflict. If one owner is unreasonably interfering with another unit owner’s use and enjoyment of the property, then the association may move to enforce anti-nuisance provisions in the governing documents in the ordinary course. (By way of example: Unit owner A is playing her favorite Van Halen tunes on the electric guitar at 2 a.m. and Unit owner B cannot sleep.) In Rhode Island, prior to assessing a fine for a rule violation, the association must give notice and opportunity for a hearing (R.I. Gen. Laws 34-36.1-3.20).
Sometimes, however, the answer is not that simple and the complaints may be on both sides. (By way of example, Unit Owner A listens to the TV too loud and Unit Owner B is heard stomping across the upstairs late at night.) These disputes are more complex, as the board may conclude that the complained of interferences do not rise to the level of “unreasonableness” that would be required for the board to enforce as a rule violation. It is fair for the board to have unit owners resolve these issues between themselves, and if necessary, their personal counsel. Sometimes, neighbors just don’t like each other.
What if, however, one neighbor is claiming harassment based on a protected characteristic such as race, color, religion, national origin, sexual orientation, gender, familial status, or disability? Most associations do not want to get involved in these nasty neighbor spats, especially when there is no seemingly obvious rule violation occurring (e.g. loud music, screaming, banging) outside of mean comments back and forth. The association, however, not only should, but must get involved if there is any reason to believe a resident is being harassed on the basis of race, color, religion, national origin, sexual orientation, gender, familial status, or disability. In the last three-to-four years, the Department of Housing and Urban Development (“HUD”) has issued regulations clarifying the standards for assessing claims involving allegations of harassment based on a protected class under the Fair Housing Act “FHA.” Condominium associations are considered “housing providers” under the FHA.
Communities are made up of a large sampling of many races, colors, religions, national origins, sexual orientations, genders, familial status, and disabilities. It goes without saying that boards and managers must treat all members equally and make no terms, conditions, or privileges, services, or
facilities based on a protected characteristic. The recent rules specify how
HUD will evaluate complaints of quid pro quo (“this for that”) harassment and, more importantly for association purposes, “hostile environment harassment” under the FHA. A hostile environment is created when an individual is subject to treatment that interferes with or deprives them of the right to use and enjoy the property as a result of a protected characteristic. Allowing such harassment to continue (e.g. a unit owner being subject to racial slurs/comments from another unit owner) creates such a hostile environment and puts the association at risk for liability for discrimination.
Under these updated regulations, associations can be liable if they know or have reason to know of discriminatory behavior and fail to end it. There is no requirement that the unit owner contacts the association or property manager about the harassment, only that the association has knowledge from which a reasonable person would conclude that harassment was occurring. Additionally, the rules provide a follow-up obligation in that if the association knows or should have known that the corrective action was ineffective, there is a responsibility to take additional corrective actions within the association’s power. Therefore, in these types of matters, the association should follow up in writing with the unit owner on the receiving end of the harassment after the corrective action is taken to ensure that it was effective.
If the complaining unit owner feels threatened, they should be directed to make a report to the police both for safety purposes and to create a record of alleged harassment for the association to move forward with enforcement of the nuisance provisions. Videos, recordings, police reports, and the like should be requested to help substantiate the allegations, but these are not required, or necessary, for the association to have an obligation to take steps to end the harassment.
While sometimes people may make false allegations of harassment based on a protected characteristic, the association must not pre-judge these claims and must do its due diligence to investigate any and all allegations. The steps taken to address alleged harassment based on discrimination should be carefully documented. If an issue with an owner claiming discrimination is not resolving, it is best to contact your attorney who can work with the local Human Rights Commission for an appropriate resolution. The association should always be proactive in addressing complaints in their infancy to best avoid being a defendant in a formal complaint.