Last year, federal regulations were changed to address harassment and discrimination claims. The changes affect community associations. Even though associations are not housing providers, they are deemed so for the purposes of this statute.
New Law. Effective October 14, 2016, boards of directors are required to address members' claims of harassment on the basis of race, color, religion, national origin, sex, familial status, and disability. This includes harassment by other residents, board members, managers, and vendors. The law requires that boards take prompt steps to investigate and end harassment. (Code of Fed. Reg. §100.7(a)(1)(iii).)
Harassment. To determine if harassment is taking place, boards can evaluate the nature of the unwelcome conduct, the context in which the incidents occur, the severity, scope, frequency, duration, and location of the conduct, and the relationships of the people involved. It does not require that the complaining party suffer psychological or physical harm, only that the alleged harassment occurred.
HUD Complaints. There may be legitimate circumstances where boards can intervene but there will also be unwarranted claims from hyper-sensitive individuals as well as false claims from vexatious individuals.
For example, a board member gives an owner a dirty look or tells them to be quiet while the board conducts its meeting. (In one of our associations the person claimed racial discrimination.) Or an owner is fined for violating the rules. (The person filed a claim of racial discrimination with the Department of Fair Employment and Housing.) Or two residents don't like each other and one seeks to harm the other by filing a claim. (Former boyfriend and girlfriend who lived in adjoining units had a falling out and claimed hostile environment.)
When harassment is alleged, boards must investigate. If the board determines a complaint is unfounded, unhappy parties can run to the Department of Housing and Urban Development (HUD) and complain against the board. Under new federal regulations, HUD will have authority to investigate the board.
Burden. Because there is no cost to claimants for filing such claims, some residents will use this as a tool to harass their associations. These claims will create an expensive administrative burden on HOAs since legal counsel will be tasked with responding to the complaints. This intrusion by the federal government into the affairs of homeowners associations is unprecedented.
The burden the new regulations create will likely outweigh any intended benefits regulators had in mind. Associations are not cities with paid city council members, police forces, and governmental immunities. They are nonprofits run by volunteers with no expertise and few resources for dealing with harassment (whether real or imagined). Civil remedies already exist. Making boards an arm of the federal government is going to make it harder to recruit and keep volunteers on boards.
RECOMMENDATIONS: Boards should work with legal counsel to adopt anti-harassment rules for their associations. The policies need to cover the reporting and investigation of alleged harassment. The policies need to include procedures for adopting findings and taking appropriate actions.
Thank you to my partner Jasmine Hale for the background information on the new regulations.
I will join attorney Brian Moreno (Swedelson Gottlieb) to speak on the growing problem of short-term vacation rentals (STRs) in HOAs and what managers and boards can do to address the problem. We will cover:
• Pressure on boards to allow STRsWhen & Where. The lunch seminar for boards and managers will be held this Wednesday, April 19 from 11:30 a.m. to 1:30 p.m. at the Skirball Cultural Center in Los Angeles.
• Problems & legal risks
• How to restrict STRs
• Enforcement mechanisms
RSVP. Register online at www.cai-glac.org.
Legislation. It seems unlikely I am the only Davis-Stirling fan who has left California but still have many friends there. Could you create a list by state of legislation directly impacting HOA homeowners? -Mel S.
RESPONSE: Every state has its own HOA legislation (as does Canada). The Community Associations Network has a list of the laws.
Hackers #1. The hacking episode must have been highly stressful. Your upgrade lingo is so far over my head that I feel like you have been initiated into a secret cult. -Larry S.
Hackers #2. Oh my goodness. You’re a victim of your own popularity and relevance, Adrian! What a pity that today we’re all potential victims. -Marilyn B.
Hackers #3. I am horrified that you had to defend your website against a foreign country’s hacking. I truly appreciate the dedication and tremendous resources you dedicated to keep your website up and running and even better. Your efforts are greatly appreciated. Thanks so much. -Lisa E.
RESPONSE: Thank goodness the hackers weren't Russian. They could have derailed my presidential plans.
Vexatious #1. Perhaps HOAs can do more in advance to steer vexatious persons away from becoming members. It might help to promulgate the message forthrightly (on websites, flyers, etc.) that “if you don’t like being subject to lots of rules, then you won’t be happy owning a condominium (and neither will your neighbors).” Would it be legal to pass a rule requiring that each HOA member include such a statement as part of the MLS listing when they put their unit up for sale? -David S.
RESPONSE: I like your idea. People who hate rules (or lack a sense of humor) should not live in associations. You could pass your rule but I don't know that anyone would comply.
Vexatious #2. Ten days ago we dealt with a malicious homeowner. She was taken kicking and screaming into a 72-hour psychiatric hold. The process involved the police and others. She's still at the rehab facility. -Michael O.
Vexatious #3. About the angry malicious homeowner creating legal expenses for the HOA, doesn’t the Davis-Stirling law provide that if the homeowner looses in court, the HOA can recover legal fees? -Arthur R.
RESPONSE: Yes, it gives the court discretion to award legal fees. In our most recent case, we received a large award for the association. It should stop our vexatious stream of lawsuits. She will likely move to another association and restart her criminal enterprise.
Vexatious #4. Your newsletter has been positively inspirational to me on more than one occasion. I had some recommended passengers for the move to Barrow, but as it didn't work out and they are still here. At least for the time being they are much less "influential" due to a recent board election. Certainly, the pen is mightier than the sword, the disruptive persons exposed their own bullying tactics and unstable mentality as they posted to "Nextdoor." The recent election put them out to pasture. The ability to have good communication is absolutely vital to all homeowners' associations! -Elaine J.
Adrian J. Adams, Esq.
ADAMS | STIRLING PLC
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