Require a Witness for Conduct Violations

Law Blog » Enforcement

One day, a board member was walking to her car in the common element parking lot.  She was already late for work but had taken the time to gather up her paperwork for the association's board meeting later that evening.  An owner walked up to her and demanded to know what the board was doing about all the dog waste that was scattered in the grass behind his home.  The board member politely asked the owner to put his complaint in writing and send it to the management company and that the board would decide what could be done.  The owner simply replied, "That's not my job.  You're on the board, you take care of it."

Unfortunately, this scenario is not uncommon.  Many well-meaning board members would go to that board meeting that night and direct the property manager to send a letter to the offending owner.  Typically, the board would then get a nasty response from the owner, denying responsibility for the dog waste and demanding to know who made the complaint.  Or, the owner would not respond at all and the board would have to consider taking further action in the absence of a witness who would be willing to come forward and confirm the violation.  There are even occasions where the owner who approached the board member in the parking lot would deny ever making such a complaint.

Not only are board members not paid enough to be put into that position, having the owner who actually witnessed the rule violation come forward at an appropriate time to attest to the violation is critical to effective rule enforcement, especially if it becomes necessary to initiate legal action in court to compel compliance with the rules and restrictions.  A board member cannot legally establish a violation in court by saying "an owner told me he saw the violation," as that is considered to be "hearsay" evidence.  A witness can only testify to what he or she actually sees or hears, not what someone else told them.​

While the board is under no obligation to identify a complaining owner to an offending owner in an initial enforcement letter, the board will be compelled to produce that complaining owner if the offending owner requests a hearing to contest a proposed enforcement assessment and certainly if the matter goes to court.  The problem is that it is usually not apparent which matters will proceed to a hearing and which matters will be resolved simply by sending a letter, so there is no way to know when you will actually need a witness and when you will not.​

As a result, whenever an owner approaches you as a board member or as a property manager, it is critical to insist that a written complaint be made by the owner, and submitted to the property manager or board, setting forth the time and date of the violation, the identity of the owner who allegedly committed it, and any other relevant facts or circumstances.  This will enable the board to make a meaningful determination as to the necessity of an enforcement letter or other enforcement action.  It also serves to insulate the board from liability should someone claim that the board is "harassing" them for no reason.​

The bottom line?  If an owner is not willing to provide the necessary evidence to establish a rule violation, the indiv​idual board members should not assume the responsibility and potential liability for themselves.