Settling HOA Maintenance Disputes Defusing Feuds

Settling HOA Maintenance Disputes

One of the jobs of a homeowners' association is to make sure there are rules for homeowners concerning maintenance issues, that these rules are spelled out, and that these rules are followed. And the great majority of unit owners realize that the rules are there to protect the development as a whole, and follow them, or else approach the management rationally when they disagree with a rule.

Yet, human nature being what it is there will always be homeowners who find themselves in conflict with the association—or with each other. Often, conflicts erupt when something goes amiss in the common areas, for example, when snow isn't plowed fast enough, or when the pool isn't properly maintained. Other times, the unit owner breaks some rule.

Surprisingly, many owners don't really know what they are or aren't allowed to do, says Stan Rothenberg, a property manager with C&R Realty and Management Co. in Englewood Cliffs. "The role of the board and the management company is to educate them first, and then we don't have to come down hard on them. The first step is to kindly inform them that there is a regulation that can be followed," he says.

Indeed, children's toys left on the landscaping, homeowners planting flowers in front of residences but in places that are technically part of the common areas, homeowners placing decorations or fencing on these areas—these all can be violations in many developments.

Going By the Book

Attorney Dennis Estis of the firm Greenbaum, Rowe, Smith & Davis LLP in Woodbridge, who co-wrote New Jersey Condominium and Community Association Law,the book many people consider to be the definitive work on the subject, gives some examples of common disputes and owners' complaints about their association.

"Let's assume that an association decides to install new landscaping," says Estis. "And by installing this new landscaping, they are putting elements into the common areas, which the unit owners basically look on as being their own. Many people may not like the plants, trees or bushes that are being installed, and as a result, you have disputes."

Some complaints are simpler. "Let's say that there's a dead shrub that that someone wants removed because they can see it out their window," says Carolyn Loofbourow, board president of the 339-unit Cross Creek Pointe development in Englewood, which is managed by C&R. "They call the administrator, or tell the landscape person the next time they see that person on the property."

This type of problem, says Loofbourow, can be easily solved—the job is just "to put it in the queue to be dealt with."

In High-Rises, Too

These are all problems typical of townhouse or garden apartment-types of situations. In a high-rise development, Estis adds, "It may be that the board decides to replace the carpeting in the common hallway—or not to replace the carpeting—and the unit owners may object." If the carpet is replaced, some may object to the new carpet; if it isn't, others may object to the fact that the old carpet is threadbare.

Yet another common problem in a high-rise development is the widespread ban on barbecues on the terraces, because of fire safety concerns as well as the odors the barbecuing tends to create. And, in some situations, associations may try to ban smoking in the apartments—one unit owner may insist on his or her right to smoke, while the next-door neighbor may object to the cigarette smoke seeping through the ventilation system.

Lines of Communication

Simply said, no matter what the nature of the dispute, it is essential to keep the lines of communication open between the association or board, and the homeowners themselves.

Rothenberg stresses the positive role of newsletters as vehicles to explain issues and rules. Loofbourow adds that in her condo development, as in most, homeowners are welcome to air their concerns and complaints during the open sessions of monthly board meetings.

"There are too many boards that do not discuss these issues with unit owners or let people know when they are arising," says Estis, who also emphasizes the importance of communication. "Some boards may feel that if they keep something quiet, they may put something over on the unit owners, but that usually creates more problems."

Indeed, association-homeowner communications are essential, but generally speaking, an owner usually approaches the manager first before he or she goes to board meetings or tries to talk to individual board members. That's what the manager is there for.

The Manager's Role

Managers have the key role in maintaining community aesthetics and ensuring a harmonious atmosphere between all involved, says Rothenberg. "That role is to make sure the rules and regulations are in fact followed and the violations are brought to the board's attention. Each month we tour the property and note any violations having to do with anything they're not supposed to do in the building or on the lawn."

In his experience as a real estate attorney, Estis finds that "There are all kinds of managers. One type thinks he makes all the decisions and is the absolute end-all and be-all, and another type thinks he's a buffer between the unit owners and the board." The "buffer" type, he believes, serves the association better.

At Cross Creek Pointe, in the event of a maintenance or other dispute between two neighbors, the assistant property manager for the complex Gail Scherinter, "would ask the individual, 'Did you talk to your neighbor?'" relates Loofbourow. "We would expect her to resolve it at her level. But if it was an unresolvable dispute for some reason—and this is very, very, rare—the neighbor would come to our board meeting."

Alternative Dispute Resolution

If a serious dispute arises in an association community and the manager can't help, and the association board can't help, then the next step, at least under New Jersey law, is alternative dispute resolution, also known as ADR. This process is not binding, and the affected homeowners, if they aren't satisfied, can still go to court. However, says Rothenberg, in most cases, ADR does work.

"ADR has to be fairly inexpensive, since most boards require unit owners to pay for the costs," says Estis. "It's probably preferable that you use other unit owners [as mediators], otherwise you'd have to be paying for a paid mediator who could cost a lot of money."

The costs for arbitration and mediation widely vary and depend on the complexity of the situation and length of time spent resolving the dispute, according to Kersten Norlin, a spokesperson for the American Arbitration Association (AAA). According to Norlin, under the commercial rules fee schedule of AAA, the fee would be $325 per party and the hourly or daily rate of whatever the mediator would charge. And according to Lester Wolff, the president of the National Center for Dispute Settlement, another mediation firm, his company normally charges rates of about $350 to $700 on average depending on the complexity of the mediation process.

However, in any case, it would not be uncommon for long-term disputes to run into the thousands of dollars, Norlin adds.

Estis has been asked to speak before the New Jersey chapter of the Community Associations Institute (CAI), to help train mediators. Individual associations can then set up committees of trained mediators in case situations of conflict arise.

Mediation, by the way, is not the same thing as arbitration. "The difference," says Estis, "is that one [arbitration] is binding, and one [mediation] is not binding Mediation is a means of convincing someone that they should compromise their position to avoid litigation or arbitration. Arbitration is comparable to litigation - one or two or three arbitrators will decide what is right or wrong."

While ADR is considered a desirable way to solve conflicts, litigation can be time-consuming and expensive. The best way to avoid litigation is to first have the board members and/or the manager act and talk diplomatically to the unit owner, not autocratically.

When litigation results, it doesn't necessarily solve the problem. One of Estis' cases that ended up in the courtroom concerned a high-rise he represented where several unit owners installed mirrors on the terraces "in order to make it seem as if the balconies were bigger than they were."

However, these owners first failed to get approval from the association or management, and secondly, there was a concern that the mirrors might get loose, fall down and hit someone, possibly giving that person grounds for a lawsuit.

The association told the unit owners to remove the mirrors, and most did, but one or two refused. The case ended up in court, those unit owners lost—and under the high-rise's rules, they had to pay Estis' firm as well as their own lawyers.

Fines for Infractions of Rules

One device that some developments have to help bring problematic owners into line before a situation gets out of hand is system of fines. The fine structure is typically spelled out in the development's bylaws.

Fines aren't just given willy-nilly, however—a procedure must be followed in which the homeowner is adequately warned. For example, in Loofbourow's Cross Creek Pointe development, management sends out a warning letter stating the problem. If the owner responds, they can talk the situation out, or the owner can request ADR. But if the owner doesn't respond within a certain amount of time, he or she can be hit with a fine.

Loofbourow cites as an example of a problem that could have resulted in a fine, but was defused beforehand, she says, "Once, someone put a short fence in front of their area, and it made it look like there was a garden in front of it. I believe their apartment was for sale, and they wanted to give it `that look.' That's a violation."

But the board told the homeowner to remove the fence, and she did so. Otherwise, said Loofbourow, it could have been grounds for a fine.

ADR, open sessions of board meetings, newsletters, even fines—all these are valuable methods to help defuse conflict over maintenance issues. But educating unit owners about the rules and regulations, and dealing with them diplomatically and not autocratically, are perhaps the most important tools.n

Raanan Geberer is a freelance writer living in New York City.

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