how to maintain order without chaos

THANKS TO OUR CONFERENCE & EXPO SPONSORS

Gary M. Daddario, Esq., CCAL Robert V. Linney, CMCA, AMS

[email protected] [email protected]

How to Maintain Order Without Chaos

OVERVIEW

I- Intro to community living and restrictions and covenants

II- Dealing with the difficult- how to receive complaints and act on them

III- Creative methods for defusing situations

IV- The legal process of enforcement when there is no settlement

V- Discussion of actual cases and resolutions/outcomes

INTRO TO COMMUNITIES, RESTRICTIONS AND COVENANTS

Hierarchy of Authority: Federal Law- Highest overarching authority. Can not conflict (e.g. ADA, FHA,

Constitutional Rights).

State Law- Any statute applies. Condominium Statute has specific and significant applicability.

Common Law- Cases decided by the Courts. May be State or Federal.

Local Law- Municipal codes or ordinances (e.g. health, zoning, etc.).

Condominium Documents- Designed specifically for particular association.


KNOWING YOUR DOCUMENTS

Master Deed- The Condominium’s “Constitution”. Sets forth the developer/development, land description, phases, plans, initial Board, delineation of common, exclusive use and unit-owned areas, major restrictions, percentage of ownership interests, easements, amendments.

Declaration of Trust- (may be By-Laws or Articles in Corp Assoc) The Condominium’s “Bill of Rights”. Sets forth procedures (meetings, special meetings, elections, etc). Sets forth unit owner obligations (behavior, use of unit, use of common areas, maintenance, payment), Board authority, restoration, insurance, etc.

Rules & Regulations- (includes policies, resolutions, etc.) The Condominium’s “Municipal Ordinances”. The most specific “do’s and don’ts” applicable. May be adopted by Board without outside approval.

“CENTRAL TO THE CONCEPT OF CONDOMINIUM OWNERSHIP IS THE PRINCIPLE THAT EACH OWNER, IN EXCHANGE FOR THE BENEFITS OF ASSOCIATION WITH OTHER OWNERS, ‘MUST GIVE UP A CERTAIN DEGREE OF FREEDOM OF CHOICE WHICH HE MIGHT OTHERWISE ENJOY IN SEPARATE, PRIVATELY OWNED PROPERTY.’” NOBLE V. MURPHY, 34 MASS.APP.CT. 452, 456 (1993) (QUOTING HIDDEN HARBOUR ESTATES, INC. V. NORMAN, 309 SO.2D 180, 182 (FLA.DIST.CT.APP. 1975).


“ANY SUCH PROVISIONS ARE AKIN TO COVENANTS RUNNING WITH THE LAND AND MAY EVEN “HAVE A CERTAIN DEGREE OF UNREASONABLENESS...AND YET WITHSTAND ATTACK IN THE COURTS.” NOBLE V. MURPHY, 34 MASS.APP.CT. 452, 459 (1992)

(QUOTING HIDDEN HARBOUR ESTATES, INC. V. NORMAN)


BOTTOM LINE- Boards have a fiduciary duty to uphold and enforce the governing documents and unit owners have an obligation to abide by them…BUT


BOTTOM LINE (CONTINUED) …BUT Boards will bear the burden of proving the case and, possibly, that their enforcement procedures are fair, reasonable and consistent…AND


BOTTOM LINE (CONTINUED) …AND


BOTTOM LINE (CONTINUED) …AND

MA allows reasonable association legal fees to be awarded against unit owner.

NH allows awards of legal fees to the prevailing party.


Listening is one of the most important skills leaders can have.

POINTS TO CONSIDER

Multiple research studies show we

remember only 25-50% of what we hear.

How well do you listen? Do you believe you absorb on average:

a) 25% of what you hear? b) Between 25-50%? c) Between 50-75%? d) About 90%?

Techniques include: Eliminate distractions Observe body language Acknowledge what is being

said by nodding or saying something like “I see” or “I understand”

Repeat or summarize what you heard to confirm

Ask questions for more information or to clarify

HOW TO DIFFUSE A SITUATION

A communication skill that builds understanding and

rapport between the speaker and listener through a variety

of techniques.

© CAI

CAUTIONARY NOTES ON METHODS

Use a communication method appropriate to the occasion. If one-on-one communication is more suitable, then pick up the phone or have a face-to-face conversation. Holding a Grievance Hearing with the Board, Manager and Unit Owner.

For every action, there is a reaction. Plan the tone of your communications to elicit the response you want.

FACING ANGER

Mr. Kravitz is quick to blame others and blow things out of proportion.

What’s the best way to respond to him?

TIPS FOR PRODUCTIVITY/EFFICIENCY

1. Find an appropriate meeting place.

2. Set an appropriate meeting time.

3. Assemble/distribute a meeting information packet for each director in advance of hearing.

4. Request that reports be written rather than presented orally.

5. Invite witnesses, experts, as needed, to assist.

6. Insist all speakers address the chair rather than other speakers.

7. Avoid endless discussion; take under advisement, call for a vote after all participants have gone.

MAINTAINING ORDER WITHOUT CHAOS LEGAL PROCESS

“In-House” Process- The Path of Escalation

Observation/Complaint |

Board Investigation |

Warning/Opportunity to be Heard |

If Disputed- Board Decision |

Continuing/New Violation- Fine |

Continuing/New Violation- Refer to legal

MAINTAINING ORDER WITHOUT CHAOS LEGAL PROCESS

Legal Process- The Path of Escalation

Warning Letter (Optional)

|

Cease and Desist Notice

|

Court Complaint (Injunction, etc.)

Note- Per M.G.L. c. 183A, §6(a)(ii), unit owner may be assessed all expenses, including legal fees and costs, resulting from misconduct. Per RSA 356-B:15, II, the prevailing party is entitled to legal fees.

MAINTAINING ORDER WITHOUT CHAOS

The Board may consider utilizing “out of the box” or creative means of resolving conflict amicably.

The goal is to reach common ground by any acceptable path.

The “Door-to-Door” Case

The “Smoke Monster” Case

MAINTAINING ORDER WITHOUT CHAOS

Sometimes a “zero sum” game is presented.

Then, the Board must act to protect others.

The “Up on the Roof” Case

The “Little Monster” Case

?? QUESTIONS ??