At Blue Sky Condominium, Phyllis Morris had just plopped down on the couch after a hard day’s work when the smell of cigarette smoke wafted in from the condominium unit next door. She grabbed her laptop and furiously typed out an e-mail to the members of her Association’s Board of Directors demanding that the Association take enforcement action against her neighbor to cause him to stop smoking inside or, in the alternative, to install smoke filters and other mitigation devices. Across town in the Picket’s Landing Community, after several weeks of arguing with his obstinate neighbor about how the fence separating their respective yards should be maintained, Bobby Frost calls the Association’s property manager insisting that the Association use its authority to compel performance of the maintenance in a particular manner. All the while, down the road, the Board of Directors of the Echo Walk Condominium Association is considering an issue brought to light by a member whose upstairs neighbor removed the carpeting in his unit and installed hard wood floors which amplify the sound of each footstep taken upstairs.
Community associations are frequently called upon to resolve disputes between neighboring residents or to otherwise stop behavior that one neighbor may perceive as harmful, annoying or threatening. The behavior may be specifically prohibited by the community’s restrictive covenants or it may be covered by an anti-nuisance provision in the governing documents that generally prohibits activities that endanger another resident’s health or unreasonably disturb, embarrass or cause discomfort to other residents. Obviously, where a particular behavior is not addressed in a community’s Declaration of Covenants, the Association may not have authority to address the situation. Even if the behavior at issue is proscribed by the restrictive covenants, Association action to enforce a violation of the Declaration may not be appropriate. For example, some complaints may be driven by an unrelated personal disagreement between the parties. Accordingly, members of a Board of Directors should approach neighbor disputes with caution and be mindful about “taking sides.”
When presented with a dispute between neighbors, Board members would do well to listen to each side of the story and consider whether becoming involved is in the best interest of the Community. In general, each member of Board of Directors should discharge his or her duties in a manner the director believes in good faith to be in the best interests of the Association. See O.C.G.A. § 14-3-830. In determining whether the Association should pursue an action to enforce their community’s restrictive covenants in a given situation, the Board should first ask whether taking such action would be procedurally fair and reasonable, and whether the substantive decision as to whether to take such action was made in good faith and is reasonable and not arbitrary and capricious. See Atlanta Georgetown Condo. Assoc., Inc. v. Chaplin, 235 Ga. App. 460, 461 (1998). For example, the Board of Directors should consider whether the complained-of-behavior affects members other than the complainant and/or the membership at large; the likelihood of prevailing if enforcement action were commenced; the cost of pursuing enforcement; whether the Association has enforced the covenants in similar situations in the past and addresses these situations in a uniform manner; and whether the Board intends to pursue such enforcement actions in the future if a similar situation occurs.
Finally, Board members should be aware of alternatives for resolving neighbor disputes other than the Association taking action to enforce the Community’s restrictive covenants. For example, individual owners have the right and authority to enforce their Community’s restrictive covenants in the same manner as the Association. Because an individual owner may be the only one harmed, he or she may be in a better position than the Association is to seek a remedy under the applicable governing documents. As this article goes to press, a news article came out describing litigation involving a homeowner who performed landscaping work in contravention to the restrictive covenants, resulting in a neighbors’ lot flooding. The injured homeowner sued the Association to compel enforcement of the covenants but also separately sued and then came to a settlement with the offending neighbor. A Gwinnett County Superior Court judge found that the homeowners association had no affirmative duty to correct the flooding in light of the injured homeowners’ right to enforce violations of the restrictive covenants and their settlement agreement with the neighbors. It is unclear whether the focus of the decision rested on the fact that the injured homeowners had their own remedy apart from any action by the Association, or that the injured homeowners came to a settlement agreement with their neighbor and should not be able to force the Association to take further action in this respect. The article indicates that the injured homeowners may appeal the Court’s decision.
In any event, applicable law and this recent Court decision suggest that Associations have a choice as to whether to become involved in disputes between neighbors. In coming to a decision either way, an Association’s Board of Directors should investigate the situation, consider why it is coming to its decision and record its reasoning in well documented minutes so that, in the event that challenge is made, there is sufficient evidence to defend the Association’s actions or inaction in any given instance. Following this course might not always result in peace and harmony between neighbors, but Board members should sleep well know that they have fulfilled their duty to the membership.