Dealing with Members

Fair housing claims often stem from adverse actions taken against members for violating community policies or rules. In some cases, it's a claim of “disparate treatment—that is, that the rules are being selectively enforced because of a member's race or other characteristic protected under the Fair Housing Act (FHA). Less commonly, it's a claim of “disparate impact,” where seemingly neutral rules have a disproportionate effect on racial minorities or other protected groups. In some cases, both claims are raised.

Community members may want to inspect the records of their association for a variety of reasons, some legitimate and some improper. It may be hard to tell whether a member wants access to records for a harmless reason, to harass the association, to gather confidential information to which the member isn't entitled, or for information that will support his case if he's planning to sue the association. This makes it difficult to know when to grant and when to deny requests when they're made.

Recently, a Montana mixed-use condominium association board voted to amend its governing documents to specifically prohibit medical marijuana dispensaries in the community. The association had sent out a survey to its members regarding medical marijuana in February 2010 asking the owners of the association how they would like to address medical marijuana and its place in the community. In that survey, 73 percent responded, with 72 percent in favor of prohibiting medical marijuana dispensaries in the community.

The decisions that a board makes very rarely please everyone. A board may have just approved a large special assessment to finance the replacement of the roof, and some owners may not be pleased with how the association's finances are being handled. Most displeased owners may focus their energies on building consensus and replacing current board members. But there are some members who will handle their displeasure with the board in completely inappropriate ways.

Your community may set reasonable rules to protect the safety of your members' children and respect other members' right to enjoy their property. But your community must be careful that your rules do not unfairly single out children, or your association may be charged with discrimination based on familial status. The federal Fair Housing Act prohibits discrimination in housing based on race, color, religion, national origin, sex, disability, and familial status, which generally refers to minor children.

Small claims court is used to resolve relatively minor civil disputes in a fair, low-cost, and timely manner. If the money damages that you're seeking are relatively small (typically less than $5,000, although the amount varies by state) and the association's preference is for a speedy, inexpensive hearing in a less-formal venue, then small claims court may be a viable option.

Many record inspection requests by members are legitimate and take relatively little office time. Unfortunately, sometimes requests may be driven by unfounded suspicions, with the intent to harass the board or manager. Also, these requests may be attempts to gather confidential information to which members are not entitled so that they may sue the association or other members. Therefore, to protect the interests of the association, it is important for board members to know which requests to grant and which to deny.

To encourage member participation in community affairs, many associations have open meetings that permit members to attend and speak about their concerns. Allowing this exchange fosters trust between the board and the community and gives members a chance to voice their opinions and concerns.

Many associations are seeing an increase in the number of members defaulting on their mortgages and not paying their association fees. This is a problem for many communities because if even a few members do not pay their assessments on time, an association can face serious financial problems. Reserves can become depleted, and the community might have to make trade-offs about which bills to pay and which services to forgo.