Forum Replies Created
March 4, 2021 at 9:35 am #6336
My first reaction to the Anti-Harassment / Anti-Discrimination Policy was that I did not like it either. After researching the subject with other HOAs, I don’t think it is quite that simple.
There are some relatively new HUD (Housing and Urban Development) anti-harassment and anti-discrimination rules that went into effect October 2016 which significantly impact HOAs. Although many HOAs and their management dislike these new rules (See, e.g. https://advocacy.caionline.org/hudwhitepaper/), it is important for HOAs to be aware of these new liability traps. The kicker is that an HOA may be liable if they have the power to exercise control over harassment/discrimination, but fail to do so. One way to avoid the liability trap is to adopt anti-discrimination / anti-harassment policies, and to judiciously enforce them.
A legitimate (and mandatory) area for enforcement is quid-pro-quo and hostile environment cases. Quid-pro-quo is “this for that” which applies when someone says “I will help you with X in exchange for sex.” The hostile environment cases do seem to be already covered by NRS 116, at least to a degree, but only to a small degree.
I read NRS 116.3118, which prohibits threats and harassment, but the harassment under that statute must be so severe that it “causes harm or serious emotional distress” or “creates a hostile environment.” Those are pretty high burdens. When a person violates the statute, the remedy is a misdemeanor charge. A misdemeanor is a crime, which means it takes the police to enforce it. The police, however, don’t want to get involved in HOA or neighbor quarrels. They view those quarrels as a civil matter.
What about cases where a member is overtly hostile to and curses at a staff person, and maybe even uses an offensive racial epithet? What if a member repeatedly does the same to their neighbors? What if clubs excluded membership based on race or religious beliefs? What if a member of the ARC said they would approve a plan in exchange for sex? What if a Community Patrol member offered security in exchange for sex? What if a person did an Andrew Cuomo, who without consent placed their hands on a woman’s face, and lower back or butt, and asked for a kiss? What if a person did an Al Frankin, who without consent put his hands on a woman’s breasts? What is wrong with issuing fines for these activities?
You pointed out that the policy is a “Can O Worms.” You have a point. Much of the policy is vague. What is “verbal abuse,” “intimidation,” “bullying,” “profane language,” and “unwelcome conduct”? Those words seem vague to me. Could I get a fine for swearing? Could I get a fine for being critical of a board or a management decision? Could I get a fine for reading Dr. Seuss in public?
Who will be issuing the fines – management? Who will hear an objection to the fine – Covenants?
I do agree that neighbors should be neighborly. We should not curse at our neighbors. We should be respectful to all SCA staff, even when we think they made a mistake. We should not berate someone because we do not like the political sign in their yard. We should not harass people.
HUD is forcing HOAs down this road. There is much to be worked out with this new policy and the HUD requirements. I hope enforcement is light-handed.November 16, 2020 at 4:10 pm #5891
Rana, your example, and the example by Richard Berman, are good examples where unreasonable rules needed to be fixed. So the problem may not be bad lawyer advice, but the draconian enforcement of unreasonable rules. If I understand how SCA works, the board can fix unreasonable rules and the ARC enforces those rules.November 15, 2020 at 12:03 pm #5876
Although I respect Rana’s opinion, in my opinion SCA got good legal advice. I am a lawyer from Washington. We recently bought a home in SCA. Below is my perspective as a Washington lawyer.
In Washington, part of my law practice was representing HOAs. Some HOA disputes involved rules violations. A frequent defense by a person cited with a rule violation is that persons X, Y and Z also did the same or similar thing. The argument goes that when persons X, Y and Z also violate the rule, that (a) the rule is waived by lack of enforcement or (b) the HOA engaged in “selective enforcement” so the rule should not be enforced. Those arguments are made even though the covenants contain savings clauses to avoid those arguments.
Sometimes persons X, Y and Z violate a rule, but no one has turned them in. Many of us have polite neighbors who don’t want a conflict, so they would not report a violation even when a blatant rule violation occurs.
In my practice in Washington, none of those boards hired a person to drive around the community to look for violations. But then, none of those associations had 7200 homes. My associations were all smaller, so board members and managers could easily see rule violations when they occurred.
If I painted my house purple, without board approval, that does not mean it is OK to have a purple house just because my neighbors fail to complain? If I have a dead tree, does that mean it is OK to leave it there until my neighbors complain to the ARC? A purple house, and a dead tree, will lower neighboring resale values and will likely annoy good neighbors.
To prevent against those and other problems, it appears the SCA lawyer recommended to have a person drive around the community 4x each year. Imposing on the SCA ARC or board members the duty to periodically drive around all 7200 homes would be too burdensome for those volunteer positions.
If the ARC issues a citation based on the drive by, then the defense should not be that the neighbors did not complain. If flowerpot or a bench citation is so petty that the circumstances do “not justify taking further enforcement action, ” then the citation should be dismissed. If the rules unreasonably prohibit a bench or flowerpots, then fix the rules.
It appears SCA’s lawyer recommended this policy change. I am not privy to what the SCA lawyer said, but I believe given the size of SCA, that recommendation was reasonable. Likewise, the decision by the SCA board appears reasonable.