Does your community have at least one Owner who exhibits consistently toxic behavior? For purposes of this article “toxic” means aggressive, abusive, annoying behavior exhibited towards Board Members and/or other homeowners within a community. While there are countless laws and articles that provide redress for the Owner who feels harassed by an Association Board, there are few remedies for Board Members and Owners in dealing with Toxic Tammy or Johnny Terrible. When annoyance feels like harassment, it’s time to take action. Most community covenants do not specifically prohibit harassment. Black’s Law Dictionary defines 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.”
What are the Association’s remedies if the covenants do not address bad behavior? Think about adopting a Rule with remedies which can be ratified at the Board level in most Association’s and without the tediousness of amending your covenants. A Rule is only as effective if it has consequences. We recommend the consequences be tiered with a warning letter to start, followed by a fine, and finally a prohibition from (x) speaking at Association meetings, (y) approaching Board Members in the forum area where the assault typically occurs from this particular Owner, or (z) attendance at Board Meetings altogether. The Rule should make clear legal fees and costs incurred by the Association will be passed along to Toxic Tommy or Johnny Trouble as an assessment. If the Rule or covenant is not followed and the harassment persists, a civil restraining order may be required. A word of caution: Courts typically require a threat of immediate bodily harm and a pattern of incidents rather than an isolated incident. Another option for some Association’s is to purchase Abusive Annie’s residence (i.e. buyout the toxic Owner either as a group of Owners or the Association.)
Typically Owner vs. Owner disputes should be handled as a civil or criminal matter between Owners without Board interference. But it is important to know that the Board has a duty to assure that illegal discrimination between Owners based on color, race, sex, religion, national origin, marital status, physical or mental handicap as protected categories under Colorado and federal fair housing laws is addressed.
We are frequently asked whether or not redress by the Association for Johnny Terrible is an Association expense or a personal expense to Board Members. If the redress is a result of an Owner’s position on the Board, it’s an Association expense. As mentioned above the Rule can make clear that any expense incurred by the Association is an Association expense that will be charged back to the bad actor as an assessment.
If your Association Board needs help navigating harassment matters, we have attorneys who specialize in these matters.
In Carbondale contact Kelcey Nichols, phone (970)425-8119; email: knichols@garfiledhecht.com .
In Avon please contact Kursten Canada (kcanada@garfieldhecht.com, 970-925-1936, ext. 853) or Tracy Kinsella (tkinsella@garfieldhecht.com, 970-925-1936, ext. 854).
In Glenwood Springs or Rifle please contact David M. McConaughy, phone (970) 947-1936, e-mail: dmcconaughy@garfieldhecht.com.
