Should homeowner associations have power to stop harassment and bullying?

By Deborah Goonan, Independent American Communities

 

One of the hot legislative debates brewing for 2018 in Florida is whether or  not boards of homeowner, condominium, or cooperative associations should be held responsible for preventing or curtailing harassment or bullying behavior among members of their communities.

The legislative proposal follows reports of incidents such as a shooting that occurred in Palm Beach County, resulting in a lawsuit filed against the association by the victim.

Victim of deputy shooting plans to sue condo association, PBSO

Jorge Milian Palm Beach Post Staff Writer
10:54 p.m Monday, Oct. 16, 2017 Palm Beach County Crime

The woman who was shot by her ex-boyfriend — Palm Beach County sheriff’s deputy Michael Anthony DeMarco — plans to sue the condominium association where she lives and possibly the sheriff’s office, according to a statement released on behalf of her attorney on Monday night.

Yuly Solano, 41, was shot several times around 8 a.m., at the Inlet Harbor Club by DeMarco, who was on duty and used his service revolver in the shooting, police confirmed.

The statement released Monday night indicates that Solano previously had warned the condominium association of DeMarco’s “harassment.” Both Solano and DeMarco have homes in the community, off Federal Highway and north of Gateway Boulevard.

“Thursday’s unfortunate shooting of Ms. Solano may have been preventable as multiple claims and evidence illustrate the harassment the unarmed mother reported both to her condominium association and management office prior to the shooting,” the statement said.

Read more:

http://www.palmbeachpost.com/news/crime–law/victim-deputy-shooting-plans-sue-condo-association-pbso/9C62w4P4DHR6e831pOD72L/

See also the report of the incident in the Sun Sentinel.

 

Note the reference to harassment in the statement released to the Palm Beach Post. The basis for Solano’s lawsuit against Inlet Harbor Club is that the Association had been made aware of DeMarco’s behavior and intent to cause her harm, but failed to act.

But at this time, it is unclear what, if anything, the Association could have done to prevent the shooting.

Fast forward several months, and a group of advocates drafts HB 123, dubbed the “Stand Up for Seniors Act.” The bill proposes that association-governed communities establish anti-bullying and anti-harassment policies, investigate reports of bullying and harassment, and refer complaints to an Ombudsman for review, prior to instituting a penalty, which could include a $100 fine.

The bill can be viewed and tracked here:

http://www.flsenate.gov/Session/Bill/2018/123

 

If enacted, would HB 123 help or harm owners and residents of association-governed communities in Florida?

As written, the bill has several limitations, as well as potential for misinterpretation and abuse.

The legislative proposal is only intended for residents of a 55+ community

There is little doubt that certain vulnerable seniors living in communities designated for adults age 55 and up are sometimes targets of egregious harassment. However, the Stand Up for Seniors Act would not be helpful to someone like Solano, a 41-year-old single mother, who does not reside in a retirement or active adult community.

 

Too much responsibility, police power for association boards

Although a residential association is obligated to follow the Fair Housing Act, and to act within the scope of its authority to prevent discrimination, HB 123 would extend responsibility and authority of an association to act upon any report of harassment or bullying, even if that report is later deemed to be without merit.

Essentially, HB 123 would confer additional police powers upon a private organization, whose officers and agents are ill-equipped to investigate and pass judgment upon the presence of harassment or bully behavior.

In cases of threats or actual harm caused to an owner or resident of the community, or to property within the community, trained law enforcement agencies are the appropriate entities to investigate and press charges as applicable to state law.

Florida, like every other state in the U.S., already has a judicial system in place to review facts and evidence, and take appropriate legal action if necessary.

By creating legal obligations for the Association to act beyond a realistic scope of authority, HB 123 sets the stage for future lawsuits holding Associations liable for failing to prevent acts of domestic violence, cyberbullying that results in suicide of a distraught victim, or personal injury or death resulting from neighbor vs. neighbor disputes.

 

FL HB 123 – anti-bully, anti-harassment bill ripe for abuse

The truth is, those with broad authority in the association-governed community (the board of directors or trustees), if given the additional power of  labeling an owner or resident as a “bully” or someone “harassing” the board, will certainly abuse that power.

One can easily envision a board or manager, seeking to conceal illicit activity or poor money management, deeming dozens of requests for access to association records as “harassment.”

And what would become of owner-operated social media websites, meant to inform neighbors of facts not provided through board-controlled communication venues? The courts will be inundated with lawsuits against such “rebel” owners, claiming harassment and bullying behavior, followed by homeowner countersuits claiming violation of First Amendment rights under the U.S. Constitution.

After all, who will investigate the board member who engages in harassment or bully behavior? Is it realistic to expect the board to investigate behavior of one or more of its own directors?

 

Who should owners, residents, and concerned parties be able contact for help?

If an Ombudsman is to serve any kind of useful role, it would be to receive and investigate any complaints of harassment or bullying behavior, holding board members, community association managers, and agents of the association (HOA attorneys or collections professionals) to a higher standard of behavior, given their positions of authority.

And some critics would argue this role would be best handled by the Attorney General, not an Ombudsman.

 

How should an agent of the state handle complaints?

Perhaps many low-level complaints would best be referred to a list of qualified Mediators, in an attempt to quell conflict or nip it in the bud before it escalates.

Anyone in charge of investigating more serious complaints should be able to refer cases to appropriate social service agencies or mental health professionals, as applicable.

Most importantly, any behavior of  criminal nature must be referred to the appropriate law enforcement agency.

 

What role, if any, should community associations play?

 

Here are some of my housing-consumer-focused suggestions:

An Association can and should enforce its valid, existing covenants, restrictions, and rules, within the scope of its powers. If members wish to adopt an anti-bullying, anti-harassment policy, the matter should require legal consultation, a 60 to 90 day membership review period, and a super-majority affirmative vote of full membership.

An Association can prohibit posting of signs intended to bully or harass residents. Likewise, it could prohibit distribution of printed materials with the same ill intent, including Association produced newsletters or posts on official Association websites.

Definitions of harassing and bullying communications distributed within association property must be narrowly defined so as not to violate First Amendment civil liberties.

Most complaints should be referred to the appropriate state and/or social service agency.

 

Reader suggestions and comments are encouraged, either below, or emailed to debgoonan@icloud.com.

 

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2 Replies to “Should homeowner associations have power to stop harassment and bullying?”

  1. I enjoy reading your articles. Do you have anything in your archive that talks about changing restrictive declarations? The non-declarant control board would like to change some restrictions that only benefit the declarant and require his approve to change…not going to happen.

    Thanks

    Like

    1. Ameding restrictive covenants (declrations)generally requires that a supermajority of the entire membership vote in favor of the amendment.

      For example, see this previous post
      https://independentamericancommunities.com/2016/09/12/fl-hoa-reject-single-family-occupancy-amendment-to-ccrs/

      Note that, since voting interests attach to the Property and not the Person/Owner, it is possible for a Declarant with weighted voting rights OR one or a few owners of multiple properties to form a voting bloc that essentially overrides the votes of the remaining members.

      The situation you describe – a nonn-declarant board that nevertheless intends to vote in favor of declarant interests – is more common than you might believe.

      Like

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