Sometimes, neighbor-to-neighbor or board-to-owner disputes escalate into emotional campaigns of harassment.
A person who suffers harassment from a neighbor or from the board of directors may seek a temporary restraining order and an injunction prohibiting the harassment.
The statute authorizes a person who has suffered harassment to use an expedited procedure to obtain the injunction. The statute was designed to provide a quick and simple procedure by which this wholly unjustifiable conduct, having no proper purpose, could be enjoined. The statute is limited to protecting only those who have suffered “substantial emotional distress” caused by conduct that “serves no legitimate purpose.”
Many owners upon receiving repeated, or even just one, violation notices or warnings from the board of directors claim that they have been harassed by the board and throw the term harassment around rather loosely and indiscriminately.
Such owners are inclined to label the board’s legal duty to enforce the Association’s governing documents as a harassment and even threaten the board with legal action if the harassment (justified and necessary enforcement effort) does not forthwith cease.
The elements of unlawful harassment are as follows:
To be engaged in a pattern or course of conduct the intent of which is to harass another person. The injured person must support his or her allegations with independent corroborating evidence.
The conduct serves no legitimate purpose;
The conduct would cause a reasonable person to suffer substantial emotional distress and actually causes substantial emotional distress to the affected person;
Because of the pattern or course of conduct, the person reasonably feared for his or her safety or for the safety of an immediate family member.
That is not a constitutionally protected activity.
The harassment must be found and supported by clear and convincing evidence before future conduct may be enjoined.
The conduct must be ongoing, and a single incident of harassment is not a “pattern or course of conduct,” entitling the applicant to injunctive relief.
Harassing Conduct Defined
Harassing conduct may include any of the following:
Verbal harassment, such as obscene language, demeaning comments, slurs, or threats;
Physical harassment, such as unwanted touching, assault, or physical interference with normal work or movement;
Visual harassment, such as offensive posters, objects, cartoons, or drawings;
Unwanted sexual advances.
The legal term “harass” means a knowing and willful pattern or course of conduct directed at a specific person which seriously alarms, annoys, torments, or terrorizes the person, and which serves no legitimate purpose. The pattern or course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person.
Notices sent to owners for violating the Association’s governing documents do not constitute harassment – they may only bother, annoy, irritate, or anger the affected violators.
The “harassing” violation notices or warnings serve a legitimate purpose: to encourage or to force the violators of the governing documents or of applicable law to cease the violation.
The notices are not sent with the specific intent to cause substantial, or any, emotional distress to the affected person or to cause fear for his or her personal safety.
Board of Directors may not be found guilty of harassment for enforcing or for trying to enforce the Association’s governing documents or applicable law while following legally allowed and accepted enforcement methods.
A board member may not discuss or try to enforce governing document violations outside a legally convened board of directors meeting.
A board member may not accost or approach a violator on or off the property, informing him that his conduct violates the Association’s governing documents, for such behavior constitutes an ultra vires act – it lies beyond the board member’s corporate powers. Corporate powers may be invoked and exercised only during a board of directors meeting and not outside of a meeting.
All violation notices and warnings must be approved by a simple majority of the board of directors at a properly called board of directors meeting and be sent to the violators by written communication, preferably by first-class or certified mail.
Individual board members should not handle violators single handed, bypassing required board approval and proper channels communication.
Owner vs. Board of Directors
It is appropriate for individual board members being harassed to use association funds to fight back by having the association’s attorney write letters to the offending owners or represent the board member(s) in civil proceedings. This is an appropriate use of association funds, for two reasons:
The board members are being harassed because of their actions as board members.
The harassing behavior is preventing them from doing the job for which they were elected, which makes the harassment an association issue and a legitimate association expense.
Owner vs. Owner
Normally, the board should let owners embroiled in personal conflicts work out the conflicts for themselves unless the harassment involves illegal discrimination based on race, color, religion, sex, handicap, familial status, or national origin, ancestry, marital status, age, sexual orientation, source of income, or medical condition—all specifically protected categories under federal and California fair housing laws. Associations have an affirmative obligation to intervene and could be charged with violating fair housing laws if they fail to do so.
When dealing with owner vs. owner harassment charges, the board should first verify the complaint – get copies of any abusive letters, e-mail messages, or tapes of abusive phone calls. If the behavior occurs in person, have a third party, the manager or one or more board members, witness the threatening behavior. The board should then follow the steps outlined below:
Have the board’s attorney send a letter to the offending owner describing the offending behavior and insisting it must stop.
Impose sanctions if the behavior continues.
Offer to mediate the dispute or suggest that the owners seek third party mediation services.
Seek a civil restraining order against the owner if the harassment continues.
Document all the intervention measures to demonstrate the board’s good faith efforts to deal with the problem.
“Harassment” is difficult to remedy—nothing an association can do will turn owners into nice or pleasant residents.
However, if the level of harassment rises to physical violence or unlawful discrimination, the Association may be held liable. An association has standing (legal authority) to seek an injunction against a unit owner to prevent future acts of physical violence, or threats of violence, against the association, its directors, employees, and residents.
In at least one case, an association paid more than a half-million dollars to settle a case in which an African-American unit owner claimed that the board did nothing to protect her from the racial and sexual slurs, derogatory comments and physical threats of another owner.