When HOAs and COAs are Liable for Neighbor-to-Neighbor Harassment
DISCLAIMER: The following blog post is about best practices and State and Federal Laws. Condominium Associates is not a law firm and, therefore, is not giving legal advice.
What You Need to Know About Neighbor-to-Neighbor Disputes
When residents in your association are having a dispute, it can be challenging to know when the HOA should get involved. While you don't want to be nosy, regulations from the Department of Housing and Urban Development (HUD) and the Fair Housing Act (FHA) make community associations liable for taking prompt action.
Your association isn't required to interfere with petty disputes. For example, if a downstairs neighbor complains about noise to their upstairs neighbor, or if neighbors feud over leaves that blow from one yard into another.
However, the association should investigate the nature of the tiff and decide to seek legal counsel. After examining the dispute, consult with your association's legal counsel for the right course of action to prevent a lawsuit. You don't want to accumulate legal fees for no reason, but you also don't want to ignore something important either. On the other hand, when the dispute escalates, and it appears one homeowner is deliberately harassing another in ways that go against HUD and FHA regulations, the association should get involved. There are two types of harassment the HUD recognizes.
Quid Pro Quo Harassment occurs when a homeowner is subjected to an unwelcome request or demand to engage in conduct and making the submission related to a person's housing. For example, one homeowner (or association employed vendor) requests inappropriate behavior in exchange for a service.
Hostile Environment Harassment occurs when a homeowner is subjected to unwelcome conduct so severe or pervasive it interferes with or deprives the owner of the right to use and enjoy their home.
When the elements below are present in a case of harassment, the association is liable. And if the association doesn't take action, the owner is well within their legal rights to sue.
#1: Harassment due to Race, Color, Religion, Sex, Familial Status, National Origin, or Disability
These are the protected classes by the FHA, but it's important to note that many states have additional protected classes, such as sexual orientation, age, and student status. For example, if the harassment involves anything related to racial slurs, targeted insults, discriminatory actions, obscene gestures about physical characteristics, the interaction has crossed the line into hostile environment harassment.
#2: Harassment is Severe or Pervasive
Another requirement of hostile environment harassment is when it escalates to a severe or pervasive level. The association should step in when a homeowner feels harassed for being in a protected class, and the harassment is disruptive, upsetting, annoying, invasive, and overall affecting the quality of the resident's life. However, the resident must document any claims because courts require fact-specific instances and evidence. The law does not require the victim to suffer psychological or physical harm, only that the alleged harassment occurred.
#3: The Association Can Conclude Harassment was Occurring
The association must know, by reasonable source, that harassment was occurring. The homeowner, a board member, or third party, can report the harassment. If the HOA is conceivably aware that this harassment is happening, the association is liable, even without an official report. This rule applies to both quid pro quo and hostile environment harassment.
#4: The Association has the Power to Correct the Harassment
Your governing documents should describe the actions the association can take to address the behavior. Associations have the power to enforce prohibition by whatever means you outline in your CC&Rs, declarations, bylaws, rules, and regulations. Per the Third Party Liability rule, an association can be liable as a third party if you can exercise control to stop the harassment but fail to do so. The association is responsible for taking immediate action to correct any harassment or discriminatory behavior against residents. Again, this applies to both kinds of harassment.
An Example of Negligence
Altitude Law, a Colorado-based agency, gives this example of negligence on behalf of the association that resulted in a lawsuit. One resident was harassing another with physical threats and racial and sexual slurs. When the board refused to intervene, the victim filed suit against the association and won. The court determined the association had the same obligation as a landlord to protect residents from discrimination and ruled the association to pay the victim $550,000 and purchase her condo.
Stay tuned for another post on how to Intervene to stop neighbor-to-neighbor harassment.