a mid-rise condominium. She has a Labrador retriever, Chauncy, as her beloved friend and companion (for ease, Chauncy is categorized as a pet). Eliza got Chauncy just before the pandemic caused the world to shut down. During the pandemic when Eliza worked from home, Chauncy made little to no disturbance. Neighbors hardly knew Chauncy was around. However, once Eliza started going back to the office on a daily basis, things changed. Chauncy started barking relentlessly for hours on end until Eliza returned home. Several of Eliza’s neighbors were home during the day. Some still worked from home. Others worked nights so they slept during the day. Others were home but didn’t work. Soon the board started receiving numerous complaints about how annoying and disruptive Chauncy’s barking was. The board knew it had to do something about the situation. It just was not sure what it should do.
Almost all declarations include a nuisance provision prohibiting owners from unreasonably bothering others. Some declarations include a provision expressly allowing a board to remove a problematic pet. Pretty much every declaration includes a remedies section to address owner violations, which remedies include, but are not limited to, filing a lawsuit to correct the problematic situation. The Condominium Property Act provides the board authority to levy a fine after notice and an opportunity for a hearing. Some associations even set forth procedures in their rules about giving warning notices before escalating to fines, etc. There are other means of dispute resolution such as mediation and arbitration, which generally require the agreement of the parties to use. Overall, there are myriad optional courses of action for a board to take.
In Eliza’s case, the board could certainly engage the association’s attorney to draft and serve a formal notice of violation, which allows Eliza the option to request a hearing. After the hearing, assuming Eliza requests one, the board could find a violation occurred and levy a fine, charge legal fees back to Eliza, and demand that she cause Chauncy to cease and desist all barking. Alternatively, the declaration may provide the board authority to demand Eliza remove Chauncy from the property and file a lawsuit if she does not. Both of those options may be legal, but perhaps the board should consider whether those options are right for the situation.
Before doing anything, the board should consider all the facts and possible options. Maybe Eliza has been an owner for many years, is liked by other owners, and has never been the subject of any type of enforcement proceeding in the association. Or, maybe Eliza is a relatively new owner who is not well known among the other owners and the board. In such a case, the board could assume that Eliza is just a trouble maker. However, she may not be and acting on a wrong assumption will only frustrate an amiable resolution. After all, Eliza, her neighbors, and the board must all
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continue living together once the dog barking disturbance is addressed.
In our example, let us say that Eliza is a newer owner. She pays her assessments on time and generally keeps to herself. Neither her neighbors nor the board know her very well. If the board were to take a more incremental approach, it could start by having a designated board member approach Eliza in person. That board member could briefly explain that the board has received complaints about her dog barking and invite Eliza to meet with the board to discuss the matter. The board could follow up that initial contact with a letter reiterating the initial communication and request to meet. This approach helps personalize the situation yet allows the board to create a paper trail in the event the situation escalates should Eliza not cooperate.
For our example, let us say that Eliza was unaware that her dog was barking so much during the day. With apprehension, because meeting with the board felt intimidating, she agreed to meet with the board to discuss the situation. The board should think about how it will conduct this meeting. Will it have its lawyer present? Will it be the whole board? Will it be only a few board members? Again, taking a more incremental approach may mean that only a few board members, without any lawyer present, will keep an informal atmosphere while still taking the matter very seriously. This initial meeting can be used as an opportunity for the board to get to know Eliza better, find out how she feels about the complaints, and see whether she suggests any solutions. Maybe all that is needed to resolve the situation is that initial meeting. For example, it is possible that Chauncy has separation anxiety that can be treated, whether with medication or something else or both. In which case, the board can successfully resolve a nuisance violation without lawyers and in a way that maintains friendly relations among the members of the community.
The above example with Eliza is not the only or right way to address a situation but rather an illustration of how a board can take an incremental or “speak easy” approach toward resolving problems within the association. There are certainly situations in which a board must act swiftly and aggressively, but that is usually a rare occasion. Most often, a board has time to take a thoughtful, calculated, and cordial approach. It is important that a board takes all complaints seriously, looks into them immediately, and establishes a plan of action. Letting a situation fester, which most often happens when a board perceives the situation as an owner to owner problem, is how a non-emergent issue can balloon into something bigger than it needs to be. That is when a board will feel pressure to be more heavy-handed. Acting early is imperative to the success of an incremental approach.
• Spring 2023 • A Publication of CAI-Illinois Chapter
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