Although the enforcement actions permitted by the Davis- Stirling Act and a Homeowners Association’s own governing documents are more limited than a residential landlord, there are substantial options available to reduce neighbor harassment and discrimination. Tese include investigations, IDR/ADR procedures, fines for violating the CC&Rs or association rules, and court action. Each of these options must be considered to protect the use and enjoyment of the common areas for all owners.
Te initial step in evaluating a claim of harassment or discrimi- nation is to perform in an investigation, which should likely be undertaken by either the Community Manager or an at- torney. An investigation allows the Homeowners Association to gather the facts and statements to evaluate the extent of the harassment or discrimination. It also provides an opportunity to educate the owners about the Homeowners Association’s rules against harassment and discrimination. Investigators can also inform the alleged harassers about the possible penalties for failing to abide by the terms of the CC&Rs and association rules. An investigation will also allow the Homeowners Asso- ciation to determine what additional intervention is necessary.
Although actionable claims require “more than a quarrel among neighbors or an isolated act of discrimination” (Bloch v. Frischholz (7th Cir. 2009) 587 F.3d 771, 776), Homeown- ers Associations should consider proposing either the IDR or ADR process to resolve the neighbor dispute before it escalates further. All board members and Community Managers should be educated regarding the IDR and ADR process required by the Davis-Stirling Act or the Homeowners Association’s gov- erning documents. Tese dispute resolution procedures can as- sist in de-escalating neighbor disputes by allowing the owners to communicate their concerns while attempting to remove the emotions involved in the situation.
Although not required under the IDR procedures, a Home- owners Association can request the assistance of the Commu- nity Manager or attorney during these meetings. (See, Civil Code § 5915.) While the Homeowners Association would be required to pay for this assistance, effectively resolving a dispute before litigation is invaluable to the members of a Homeown- ers Association. It is also important to note that there are low cost mediation services providers available through the web- sites of the Department of Consumer Affairs and the United States Department of Housing and Urban Development.
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HUD has noted that Homeowners Associations “generally ha[ve] the power to respond to third-party harassment by imposing conditions authorized by the association’s CC&Rs or by other legal authority.” (81 FR 63054.) Te ability to impose monetary fines and/or bring an action in Superior Court may be a Homeowners Association’s final quiver in its arsenal against harassment and discrimination. Proac- tively updating a Homeowners Association’s nuisance, anti- harassment, and anti-discrimination policies and rules in accordance with the Davis-Stirling Act and the governing documents is essential to being able to issue fines. If a Supe- rior Court action is necessary, the Homeowners Association must bring a claim for injunctive relief against the nuisance behavior otherwise it will be limited solely to a monetary judgment and cannot receive an order imposing restrictions against the offending owner.
Homeowners Associations and Community Managers need to be aware of their potential liability for failing to pro- tect owners from pervasive harassment and discrimination. By proactively using their available arsenal and document- ing each step in the process, Homeowners Associations and Community Managers can hope to reduce the potential for escalating disputes and litigation. Lastly, if there is ever a con- cern for an owner’s life or safety, Homeowners Associations and Community Managers must immediately report the mat- ter to the police.
JOHN F. BAUMGARDNER is an attorney with Chapman & Intrieri, LLP in their Ros- eville, California office. His practice focuses on representing Homeowners Aassociations in construction defect disputes, judicial collec- tions, general counsel matters, general civil lit- igation, and revision of governing documents.
Additionally, in some instances, a Homeowners Association and its members are required to participate in an alternative dispute resolution process before filing a civil suit. (See, Civil Code § 5930 (b): pre-filing requirement to participate in alternative dis- pute resolution process “applies only to an enforcement action that is solely for declaratory, injunctive, or writ relief, or for that relief in conjunction with a claim for monetary damages” under $25,000.) While IDR and ADR will not resolve every dispute, they provide a fair process that provides Homeowners Associa- tions, Community Managers, and owners an opportunity to reach consensus, be heard, and reduce potential litigation
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