Community associations typically try to stay out of purely neighbor-to-neighbor disputes, which usually makes sense as many disputes are outside of the scope of the associations’ rights and responsibilities provided in their governing documents and relevant law. In addition to lacking the authority or duty to intervene in many such disputes, community associations often lack the practical resources necessary to resolve personal disputes between neighboring property owners.
However, there are instances when neighbor-to-neighbor disputes can and should be addressed by a community association, particularly if potential covenant and rules violations exist, or if the allegations suggest discriminatory behavior rising to the level of a “hostile housing environment” under the federal fair housing laws.
When a dispute reaches the point of owners imploring the association to intervene, the board should initiate an investigation to determine whether there is a valid association-related issue (e.g., a potential covenant or rules violation or a potential claim for a hostile housing environment) and consider what, if anything, the association has the authority and resources to do.
If there is a valid association issue, before resorting to demand letters, violation charges, and lawsuits, the association should consider whether there may be an opportunity to resolve the conflict through mediation.
Depending on the situation, mediation could save the association and the owners time, money, and effort. Mediating a neighbor-to-neighbor dispute (if the parties agree) has the added benefit of potentially warding off fair housing complaints based on an alleged hostile housing environment. Also, this strategy helps provide a viable defense to such claims by showing the association took steps within its authority to put an end to the allegedly hostile behavior.
It may seem obvious, but mediation requires the consent of all parties involved, which should include an understanding of how the mediation will operate and the purpose and intent of the mediation effort. As I see it, there are four key elements to the successful mediation of a neighbor-to-neighbor dispute:
- Expression – Allowing the parties to freely share their perspectives in a civil manner, giving their thoughts on the underlying issues and the potential terms for a resolution.
- Understanding – Keeping an open mind in an effort to understand the other parties’ perspectives and how certain actions and behaviors may affect the other parties involved.
- Consideration – Being more considerate in their actions that may have a negative effect on the other parties.
- Tolerance – Being more tolerant in their reactions to the perceived “negative” behavior of the other parties, which is always critical in a multi-unit environment.
Allowing the parties to express, from their individual viewpoint and experience, the underlying problems and to offer terms of a potential resolution is essential in any mediation. The expression of frustration alone can often serve as a “steam valve” to depressurize a volatile situation. Expression of varying viewpoints in an open and safe environment can also foster a sense of understanding among the parties. By listening to their neighbor, the parties may be able to find some sense of common ground where they can agree to be more considerate and tolerant of each other.
In addition to these somewhat abstract concepts, there are practical ground rules that should be agreed to ahead of the mediation. Below are some factors community associations should consider in setting the ground rules for mediation:
- Confidentiality and Sharing of Information – Whether statements made during the mediation can be shared with third parties, including in subsequent legal proceedings.
- Written Agreement – Whether the goal of the mediation is a formal written agreement that may be enforced in court if necessary.
- Face-to-Face vs. “Shuttle-Diplomacy” Mediation – Whether the parties will meet in the same room or have the mediator act as a conduit for communication between the parties.
- Representation – Be clear that the mediator does not represent either party in the mediation but rather is attempting to facilitate an amicable resolution between the owners.
The ultimate success or failure of a mediation depends on the willingness of the parties to find common ground and follow through on commitments made. This can be a tall order, but community associations should not immediately dismiss mediation as an option to resolve disputes that rise to the level of an association issue. Simply put, the power of expression, understanding, consideration, and tolerance should not be ignored.
 In 2016, the Department of Housing of Urban Development issued a rule (24 CFR § 100.7) making it clear that community associations have a duty to protect residents from fair housing violations where (i) the associations have authority to act and (ii) the associations know or should know of discriminatory conduct occurring in their associations. A full discussion of hostile housing is beyond the scope of this article. Read more about the HUD hostile housing environment rule at https://www.chadwickwashington.com/blog/hud-fair-housing-compliance/.
By Daniel D. Blom, ESQ.
Daniel is an associate attorney with the law firm of Chadwick, Washington, Moriarty, Elmore & Bunn P.C. His practice is devoted to the representation of community associations throughout Virginia and the District of Columbia, including covenant interpretation and enforcement, contract law, and collections matters. He is an active member of WMCCAI’s Quorum Editorial Committee.