By: Barbara Hager, Esq. and Ronald J. Barba, Esq.
Every so often we receive calls from Board members or property managers exasperated by the actions of a meddling, “helping” or interfering unit owner who has taken it upon themselves to instruct Association vendors on the proper manner to do their job. These vendors range from landscapers, snow plowing contractors, carpenters, roofers and even insurance companies. They “remind” these vendors that they, the vendor, work for them as much as the Association since it is they that pay the bills. That lament is often pointed at the attorney during usually heated unit owner/board meetings.
Sometimes, Unit Owners or their tenants are so eager to “be involved” in everything that happens at the common interest community. They might, for example, decide that they know best about how to plow the snow. It may begin by the unit owner instructing (yelling at?) the contractor how best to do his or her job. Or perhaps the Association’s landscaper is not trusted by the Unit Owner, so the Unit Owner decides to stand near the contractor as they rake, mow, weed, you name it. All too often the meddling owners acts become harassing and abusive toward the contractor either distracting them from their duties or driving them off the job entirely. Sometimes, these busy-bodies will threaten or actually call the police on a vendor that has offended them in some imagined way.
The interfering owner proceeds on the mistaken presumption of authority or right since “they pay these vendors salaries.” Of course it’s not true. If it were, I would have been much more successful in talking the traffic cop out of issuing that parking ticket. What these owners fail to recognize is that it is the Association, through the board of directors that enters into contracts with its vendors. Unit owners certainly benefit from the service contracted for, but they are not parties to the contract and have no legal right to interfere. The Common Interest Ownership Act authorizes the Board of Directors the right to hire, fire and supervise vendors or contractors.
What can the Board of Directors do to address these situations? The options vary depending upon the frequency and intensity of the interference. The Board could have the property manager, or another available Board member, speak with the interfering Owner and explain the realities of the situation. In my experience, that rarely works. In the past, when approached with this problem, I would suggest that the owner be sent a letter from the Association’s legal team advising them of their bad acts and threaten them with litigation for “tortuously interfering with the Association’s contractual expectations.” The law provides contracting parties the right to sue those individuals that insert themselves into a contractual relationship and cause damage (monetary losses, premature contract terminations, etc.) In serious cases, the courts are willing to compensate the Association for the damage caused by the interfering owner. Generally, this option should be considered as a last resort and for the most egregious offenders. The cost and uncertainty of litigation can prove a significant deterrent for the Association.
The middle ground involves Association’s adopting rules specific to this problem. The Board could adopt language to be added to the Association rules which not only holds an interfering unit owner responsible for their acts but, can also be used to assess any expense incurred as a result of the interference. Rather than risk running the litigation gauntlet, the Board could address the problem in a more timely and direct manner by providing notice and an opportunity to be heard to the owner. If the board is satisfied that the interference occurred a fine or fines may be levied. If damages result from the interference, any calculable amount resulting from the owner’s conduct could be assessed against his or her unit.