Since the beginning of the COVID-19 pandemic, there has been a rising tension across society involving a variety of issues. These issues often begin with arguing with total strangers on social media about our communities and arguing with our neighbors both online and in-person creating a neighbor-to-neighbor dispute. In this blog post, we will look at the common issues that cause neighbor-to-neighbor disputes, discuss if and when the association should step in and under what circumstances it may be necessary for the property owners association’s (POA) legal counsel to become involved.
Issues Creating Disputes
In many communities, disagreements between neighbors are quite common. They can be as simple as a dog barking excessively, or a car parked on the street across from someone’s driveway. These disputes are often solved quickly by the neighbors having a conversation. Other common issues that may create neighbor-to-neighbor disputes include:
- Children in the street
- Boundary disputes
- Noise disputes
- View obstruction
- Water damage between units (condominiums)
- Aesthetic concerns
Along with these common issues, new issues have arisen during the COVID-19 pandemic. We have seen disputes involving the pandemic, politics and race both on POA approved and unapproved social media pages and in-person amongst neighbors. If situations like any of these or others arise within your POA, when should the POA become involved?
POAs need to be cautious about becoming involved with neighbor-to-neighbor disputes. The use of POA resources to mediate disputes is not always the best use of POA resources, and there may not always be community support for board intervention into an issue. The POA becoming involved will depend on the extent of the issue. The POA’s board will need to ask itself; does the dispute:
- Threaten the health and safety of others?
- Create possible depreciation of property value?
- Provide a nuisance/annoyance to multiple neighbors?
If the answer is yes to any of these questions, the POA may have grounds to become involved to develop a solution to the situation. For situations concerning the immediate threat to health and safety, community members should contact local law enforcement to help resolve the situation. The course of action a POA takes should begin with checking its restrictions. For a violation of any restrictions, the POA has a duty to enforce and maintain their covenants. A failure to act could potentially create liability for the POA and create a precedent that enforcement of the covenants is arbitrary and capricious.
As a part of enforcement action to resolve potential disputes, the POA may choose the of use fines. Before issuing a fine to a homeowner, the POA will need to ensure it has fining authority by checking its Declaration and/or Bylaws. If the POA has fining authority, a fining policy should be recorded. Note: condominiums have statutory authority to levy fines from Sec. 82.102(a)(12) of the Texas Property Code. When issuing fines, they must be reasonable and used as leverage, not for profit, to encourage compliance with the POA’s regulations. But, remember, when issuing a fine, a POA must satisfy the conditions provided by statute. For condos, those can be found in Se. 82.102(d). For single-family, those can be found in Sec. 209.006(a) & (b).
When to Contact an Attorney
If a POA becomes involved in a neighbor-to-neighbor dispute, it may be necessary for the POA to involve its attorney to assist in resolving the matter. The POA should consider contacting its attorney in the following circumstances:
- Parties refuse to cooperate
- Dispute involves a violation of the covenants
- Association is unsure of its duty to enforce
- Dispute affects others in the community other than the parties at issue
- Issues involving complex property law
- FHA issues arise
If it is necessary to hire an attorney to resolve a violation, attorney’s fees are recoverable per Section 5.006 of the Texas Property Code entitled “Attorney’s Fees in Breach of Restrictive Covenant”
(a) In an action based on breach of a restrictive covenant pertaining to real property, the court shall allow to a prevailing party who asserted the action reasonable attorney’s fees in addition to the party’s costs and claim.
(b) To determine reasonable attorney’s fees, the court shall consider:
- (1) the time and labor required;
- (2) the novelty and difficulty of the questions;
- (3) the expertise, reputation, and ability of the attorney; and
- (4) any other factor.
Neighbor-to-neighbor disputes occur frequently within our communities and POAs are always struggling with the issue of whether to become involved in the dispute or not. In many situations, these disputes will be left with the owners to deal with amongst themselves; however, certain scenarios, such as restriction violations, belligerent parties, etc., may require the POA to step in. If the POA intervenes, fines, mediation, covenant enforcement and attorney assistance may be available to help resolve the issue. For situations where the POA chooses not to act, the POA should seek advice from legal counsel to protect its decision not to act.
If you have questions on neighbor-to-neighbor disputes, join me for a webinar on Tuesday, November 9th at 11:30 a.m. I will be discussing more on scenarios when the association should/should not become involved, nuisance provisions in governing documents and more.