ANNOYANCE OR HARASSMENT? WHAT TO DO WHEN OWNERS CROSS THAT LINE
BY JANET OULOUSIAN ARONSON
Most condo owners are (usually) courteous, considerate and compliant. But every community has at least one owner – and sometimes more than one – who are none of those things. These are the owners who:
Oppose everything and support nothing.
Regularly harangue board members and managers in meetings and in person.
Send scathing e-mails and leave insulting, often scurrilous voice mails.
Accuse board members and managers of incompetence or worse; question their motives, their ethics and their intelligence.
Experienced trustees and managers dismiss these attacks as part of their job – annoying and unpleasant, to be sure, but unavoidable. But there is a point at which annoying behavior becomes so extreme or so excessive that it constitutes “harassment.”
Determining when owners cross that line isn’t easy, but it’s necessary, because harassment is becoming an increasing problem in community associations. That’s not surprising. Society as a whole has become less civil, and community associations are microcosms of the society in which they exist.
A SOCIETAL PROBLEM
People who regularly tweet vicious tirades or post them on Facebook will be equally unrestrained and uncivil in their interactions with board members or other owners. We receive several complaints every year from board members and managers who complain that they are being “harassed,” without being entirely certain what that means or how to deal with it.
Defining harassment is difficult. A Supreme Court justice famously said of pornography: “I can’t define it, but I know it when I see it.” That’s also true to some extent, of harassment. Like pornography, harassment may be in the eyes and ears of its targets. Some board members might feel harassed by behavior that others would find only mildly annoying. But harassment is real, disturbing and serious. If boards are going to deal with it – and they must – they have to define it.
Black’s Law Dictionary provides a starting point, defining harassment as “words, gestures, or actions which tend to annoy, alarm, or abuse another person.” To annoy, Black’s suggests, is “to disturb, irritate” or “cause discomfort,” while abuse consists of “insulting, hurtful, or offensive wrongs or acts.”
Building on that legal definition, homeowner associations can turn to their covenants, which typically guarantee owners the right to the “quiet enjoyment” of their homes, which means the right to live in the community without being annoyed, harassed, or otherwise interfered with by others. “Quiet enjoyment” may be too broad a term to provide an effective tool for dealing with harassing behavior. In some situations, we advise our clients to either amend their covenants or have boards adopt rules specifying that harassing or abusive behavior is not allowed. The language can be simple, as in this model clause:
“Members and other residents shall not engage in any abusive or harassing behavior, either verbal or physical, or any form of intimidation or aggression directed at other members, residents, guests, occupants, invitees, or directed at management, its agents, its employees, or vendors.”
This language still leaves room for debate about the point at which annoying behavior becomes abusive, or when a strong expression of opinion becomes intimidating, but it is a place to start and a basis for taking action against homeowners who cross the line. Calling board members or managers incessantly, accosting them in common areas, leaving abusive or threatening voice-mails, sending incessant e-mails are among the unacceptable behaviors we’ve seen, and all would qualify.
TALK FIRST
As is true of any problem, the first step in dealing with harassing behavior is to try to discuss it with the owner– preferably in person. Sometimes these discussions will identify an underlying problem, which, if addressed, will improve the behavior.
If this discussion is impossible or unsuccessful, the board should communicate formally, sending a letter (or having the association’s attorney send it) describing the behavior, noting that it violates the association’s covenants or rules, stating that the individual will be subject to fines or other specified sanctions and possibly legal action if the behavior doesn’t stop.
If you are dealing with someone who simply overreacted to an issue or a concern, a letter threatening sanctions and suggesting other ways the owner can deal with the problem is usually all that is required. It’s the equivalent of throwing a glass of cold water in their face, making them aware of their behavior and of the consequences if it continues. We caution, however, that a formal notification can sometimes exacerbate the bad behavior.
If the letter doesn’t work, the next step is court action. That used to mean seeking a preliminary injunction, followed, if necessary, by a permanent injunction, and that is still an option. But harassment often involves speech – angry, vicious and insulting, perhaps, but still speech which courts are reluctant to restrict.
A case in point: About ten years ago, a Massachusetts Appeals Court ruled that community associations must respect the right to freedom of speech, extending a constitutional safeguard that has traditionally applied only to governmental entities, and arguably limiting the ability of boards to deal with verbal harassment. Absent evidence that the harassment creates fear of physical harm, it can be difficult to persuade a court to act.
HARASSMENT PREVENTION ORDERS
A 2017 Massachusetts statue permitting “Harassment Prevention Orders” creates an easier legal path. This statue allows an individual claiming harassment to obtain a temporary restraining order if they can provide evidence of “three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property, and that does in fact cause fear, intimidation, abuse or damage to property.”
The statute is helpful in part because it provides a clear definition of what might constitute harassment. It defines abuse as “attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm,” and it defines malicious acts as those “characterized by cruelty, hostility or revenge.” Equally important, the statute creates a streamlined procedure, requiring only an affidavit specifying three examples harassing behavior. And it provides speedy relief. We’ve used this process successfully many times to help board members and managers deal with abusive residents.
We’ve also used a non-judicial remedy in some situations, telling offending owners that the manager or board won’t accept or respond to their harassing phone calls, letters or e-mail messages. This has proven to be particularly effective in dealing with disturbed individuals, whose behavior is annoying in the extreme (leaving dozens of e-mail or voice mail messages every day, for example) but is not threatening or emotionally distressing.
SOME GENERAL ADVICE
In dealing with the harassment of board members or managers, boards have to tailor their response to the behaviors and the individuals involved. There is no boilerplate strategy that will work in all situations. But these general suggestions may be helpful in guiding your response:
Start by listening. Sometimes angry owners simply need an opportunity to explain a problem or vent their frustration. Demonstrating the board’s willingness to listen and to address an underlying problem may defuse tensions before they evolve into full-blown harassment situations.
Get other owners involved. Owners who disrupt meetings might ignore the president’s order to sit down, but they may well respond if five other owners repeat the command. The owner who shouts epithets at the board president or the manager in the parking lot will stop if other owners, especially someone the disruptive owner respects or will at least listen to, tells him that behavior won’t be tolerated. Bullies, by definition, won’t stand up to a crowd. Although you can try to halt abusive, insulting statements or written messages by suing for libel, slander or defamation, this may not be effective, among other reasons, because these suits are so hard to win.
The association should consider paying the legal costs of board members who seek a court order to halt harassing behavior. The harassment results from their actions as board members and arguably is interferes with their ability to fulfill their responsibilities. The same argument (for paying legal expenses) applies to managers who are targets of harassment stemming from their work for the association.
If you are dealing with actual physical threats as opposed to verbal assaults – if an owner raises a fist, displays a weapon or threatens to kill someone ─ call the police immediately. Even if you don’t think the threat is real, calling the police is a reasonable precaution. If you’re going to err, best to err on the side of being overly cautious. And even if police intervention is unnecessary, having a police report on file will strengthen your argument if you eventually seek a court order against this individual.