Second – rely on third-party professionals. Always remember, homeowners are neighbors. If a problem-homeowner arises, board members can use a third-party professional to act as a social barrier between them and their neighbor. If


the homeowner is making excessive demands, requests for information, or other types of overt communication, then it might be politically safer to have a third-party professional respond to the homeowner. This professional can often be the management agent, or when necessary, the association’s legal counsel. These professionals are independent third-parties that can provide an objective, fact-based response on behalf of the association. By having a third-party respond, in lieu of a board member, it may help preserve an emotional distance between neighbors when corresponding about association matters and alleviate any awkwardness amongst homeowners who share common spaces. Think of these professionals and experts as a figurative Whack-a-Mole mallet that can be used to quash the tenacious individuals.


Third – if it feels, sounds, and looks litigious, it probably is. The reality of our system is that anyone with a few hundred dollars and a theory can file a legal action. While its merits, or its chances of success might be small, there is little an association can do to prevent a litigious homeowner from filing an action against it. Board members need to do their best to recognize when a homeowner’s behavior might be a fishing expedition for cause to file suit. If the homeowner has a litigious history, or their behavior appears to be intentionally causing controversy, it might be best to communicate with the association’s attorney regarding any further response or interaction. This is recommended to protect both the association and the individual board member from being accused of personal liability for their actions. By way of example, a board member who is also a licensed engineer might respond to a problem-homeowner regarding their question or complaint about an on-going capital project. In doing so, they are walking a thin line as to whether their response is in their capacity as a board member or as an engineer. If the homeowner is litigious, they might claim the board member’s comments were made in their capacity as an engineer. The result is that the board member may jeopardize their coverage under indemnity terms in the association’s governing documents, and thus the association’s applicable insurance policy. Bottom line – if it feels, sounds, and looks litigious, then trust your instincts, be prudent and seek legal counsel.


48 | COMMON INTEREST® • Summer 2021 • A Publication of CAI-Illinois Chapter


In summary, every situation involving a problematic   However, these recommendations are meant to provide general guidance to board members when dealing with these difficult cases, and remind them that they are never alone – qualified professionals are available to provide meaningful assistance. In this way, you can learn to master the “moles” in your association as they pop up and not be overwhelmed by them.


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