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Neighbor Disputes  Continued From Page 25


Governing Document Provisions Another task for the association


is to identify what provisions, if any, are being violated. Note that people complaining do not always know exactly what language in the governing documents is relevant. Often pertinent provisions concern resident conduct and are located in the “Use Restrictions” section of the Declaration, or the rules and regulations or board policies. Such provisions may include those concerning “quiet enjoyment,” noxious and offensive (i.e., nuisance-type) behavior, illegal activities, or restrictions particular to commercial units (often involving sound or vibrations), and hard-surface flooring installation. House rules also typically add details about music, speakers, quiet hours, and running of appliances.


Complaints


There may be several sources for a complaint: A manager or board member may simply observe a violation, or an owner may submit a complaint. Do not ignore a tenant complaint, but instruct the tenant to submit the complaint through his community association manager or landlord to maintain boundaries. If a board member is personally involved in a situation, that board member should recuse themself from any board discussions or decision- making to avoid the appearance of a conflict of interest or bias.


A complainant may be afraid of being identified, which is a valid concern if there is a fear of retaliation. In such a circumstance, try to independently verify the complaint. Otherwise, try to get permission to disclose the identity of the person complaining if appropriate.


A complainant may be afraid of being identified, which is a valid concern if there is a fear of retaliation.


Investigation


The investigation of the complaint is an important part of the process that is often overlooked. Investigation may include speaking to the complainant, seeking specific details including those about times, dates, and durations. Determine if there are other witnesses and speak to them. Collect photographs and sound or video recordings if appropriate. Request police and Department of Licensing information. Schedule a site visit in both the complaining unit and the unit at issue—but have at least two representatives present if possible. Be mindful of privacy and scheduling: Get permission to visit within a reasonable timeframe during the purported violating activity.


If the complaint involves sound, consider hiring an acoustical consulting firm. Acoustical consultants can measure noise levels, may be able to opine on the source and path of a noise, and may provide a scope of work to remedy the problem to take to contractors for bids. Try to determine who will hire and pay for the consultant ahead of time.


Making and Communicating a Preliminary Decision


When making a preliminary decision, do not simply


“rubber stamp” a complaint. Apply a reasonable person standard, which is objective. Do not approach the situation from the perspective of a hypersensitive person, or a person with an unusual sleeping schedule. Be sure to conduct a board vote in real time, or formally delegate authority to make enforcement decisions to a manager or committee.


When communicating the decision, be sure to notify both the complainant and the alleged violator. If the investigation was inconclusive, or if the sound or behavior was not objectively unreasonable, notify the involved parties that the matter is closed. You may also appease the complainant by reminding the alleged violator to be mindful of noise even if no violation was determined. If a violation is determined, send out a warning letter, which is required in some communities before fining, particularly if the violation is minor or most likely accidental.


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