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Board has a duty to protect owners from disruptive tenant

June 14, 2013|By Donie Vanitzian

Question: I am very concerned about who's really running my gated community's association. A tenant next door suffers from severe problems. For the last year, three nights a week, he is either throwing furniture around, banging on the walls and screaming, or on his adjoining balcony endlessly talking to himself, then starts banging on patio furniture sometimes more than eight hours a day. He constantly threatens to kill himself and others. At night he brings home street people who scare the neighbors.

Many of us have called security and the police. Security writes him up, and police make reports. I've been providing all police reports to our manager for a year, and I keep track of all calls to security, but it seems no one wants to get involved.

The manager encourages the board's inaction, saying the board can only "fine" the owners, which it has done, and the owners continue to pay the fines. At a recent board meeting I learned directors knew nothing of this ongoing problem.

The manager says this is a neighbor-to-neighbor dispute and not the board's problem, so she kept it from them. I gave the board copies of all police and security reports and asked that they be entered into minutes — but when minutes were distributed, nothing was mentioned, instead I was branded a "complainer" and "troublemaker." What are the implications of this situation, and how long do I have to live under these conditions?

Answer: Some power-hungry property managers think it is their job to insulate board directors from everything that happens in the association, a very serious error in judgment as it could end up getting board directors and the association sued for the manager's inaction. When something goes wrong and creates liability, the property manager, as the board's agent, may escape personal liability if he or she is indemnified by the association's insurance policies, leaving instead the directors and the association liable for acts about which they knew nothing.

To ensure that directors have notice and that there is a record of it, titleholders who are being ignored should send their complaints to the board president via U.S. Postal Service, certified mail, return receipt requiring a signature. The complaints should also be sent by regular mail to all directors.

When directors do have notice about potentially volatile situations such as you describe, they have a duty to take precautions or direct action to protect the residents from harm; otherwise they and the association may also become responsible for injuries or other costly outcomes. When seeking coverage from an association insurance policy, a board that "knew or should have known" of such situations but failed to take appropriate action, may find that insurer denying coverage because of their willful failure.

As an owner whose quiet enjoyment of your property is affected, in the absence of board action your alternatives include bringing a lawsuit against the tenant and the unit's owners for interfering with your rights. You and other affected owners would benefit by joining together in such a suit.

Legal action could include a request for restraining orders and claims against the board for breach of their duties to curtail the situation. Whether the lawsuit will force the unit owners to evict the disruptive tenant, you may still be entitled to damages, which could be substantial. Consult an attorney to learn and understand what remedies may be available from filing suit and from out of court.

The late Stephen Glassman, an attorney specializing in corporate and business law, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.

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