October 2, 2024
Should a Member of an Association Sign a Civility Pledge?
One reoccurring topic in HOAs and condominiums is the lack of civility and what sort of decisions the board can make to require civility. This is also a hot issue in nonprofits, houses of worship and private school organizations. Should a member of an association sign a civility pledge? I view civility as a core value of humanity. I spend much of my time litigating or resolving disputes for my homeowner clients with their community leaders. I have observed many situations where civility was deficient on the part of someone, be they an elected, vendor, or member. Community associations make decisions in deliberative gatherings of owners or directors. Civility is a prerequisite to a discussion or conducting a vote. Everyone is partially responsible for civility. Ordinarily, civility is achieved among strangers by rules of order. While civility does not necessarily require one to defer to others in matters of judgment, sometimes a dissenter must respect the outcome of the process when matters of business judgment are made through proper procedures.
One approach is to create a “civility policy” that the board adopts for the directors to use in dealing with each other, or it may take the form of a policy resolution, or a more aspirational pledge. The purpose of this blog post is to provide a director, committee member or homeowner with food for thought when asked to sign a civility pledge by leaders in their condominium or HOA. One can be committed to civility while skeptical of such pledges.
The Community Association Institute, an influential trade association, is all-in on civility pledges. CAI professionals know from experience that volunteer boards in our present day and age push back hard on the use of formal rules of order to structure decorum. We live more in an age of emotion, not motions. CAI provides their members (HOA lawyers, managers, vendors and leaders) with a Civility Pledge form. They say the board can address the lack of civility by formally adopting the “Community Association Civility Pledge” as an official policy. The form includes some well-meaning language about accountability, respect, common ground, civil discourse, and so on. The Civility Pledge refers to CAI’s “Rights and Responsibilities for Better Communities,” a similar form. The latter is a confusing two-page document. This summary is vague regarding the rights of homeowners and the duties of directors, while sharing an expansive view of the prerogatives of the board and the duties of homeowners. However, each association has its own governing instruments which vary from what is stated on this summary.
Many board majorities have become so frustrated by protracted disagreements with certain directors or homeowners that they ask their attorney to sue that person for harassment. The lawsuit seeks an injunction against the defendant from continuing her conduct towards directors, managers or other agents. In some situations, these lawsuits run afoul of law, which does not generally permit judges to restrain defendants in advance from speaking. Such lawsuits try to rely upon certain provisions of recorded instruments that prohibit owners from using the property or common areas for an “improper” or “nuisance” uses. However, such provisions typically contemplate a misuse of property, not interpersonal disputes over exchanges of words. Sometimes, the association’s attorney will threaten such a lawsuit to try to deter unwanted conduct. The specter of such litigation often lurks behind discussions about civility.
Do community associations really need civility pledges in addition to the recorded instruments they already have? Or does this question obscure the real issue? Unfortunately, once a level of acrimony arises, pledges do not really provide the band aid that is needed. The disagreeing parties may simply continue to argue, only now saying that their opponent is violating the pledge. Or the refusal to sign a pledge may be complained of as evidence of a lack of civility.
What has been lost (and needs to be regained) is a sense of trust or confidence that another person or group will do what they ought to do, under the laws and recorded instruments . . . without being forced by a judge. Acrimony arises because of the sense that trust is missing, and disagreement continues. Trust can be built over a period of years, only to be lost in an instant.
We live in a moment in which faith in institutions is at a low point. There is much confusion about the difference between earning the confidence of team members versus a kind of apparent respect that is actually a fear of retaliation (i.e., power-based persuasion). How can owners, directors and professionals thrive when there is lack of trust, faith in others, and confidence all around them? Here are a few ideas:
- Focus on resolving disputes amicably, when possible, rather than arguing about civility.
- Inspiring confidence and respect ought to be a continuing effort, rather than simply expecting respect because you have power over others (or exercisable personal rights). If trust has been completely broken, one has to consider whether to try to rebuild it where one is, or to sell the home and move elsewhere for a fresh start.
- It is possible to have all sorts of disagreements with others where there are different viewpoints based on varying interests in the matter where the dispute may not be about the character flaws of someone involved. Because someone disagrees does not necessarily mean that one of the parties involved have a serious character flaw.
- Consider following Robert’s Rules of Order. The idea behind Robert’s Rules of Order is that without commonly accepted procedures, communications in meetings can be a free-for-all, with certain individuals trying to gain control of decisions by talking over others. While this may seem old-fashioned, rules of order provide a framework for civil discourse.
Proponents of civility point out that in many associations there is one or two owners (who may also be directors), who are so misanthropic that they poison things for everyone, and the civility policy is necessary to show what is the root problem. But truly misanthropic personalities will not be tamed by a civility pledge.
What should a director or committee member do when asked to sign or vote on the CAI Civility Pledge or some other policy resolution regarding civility? Should a member of an association sign a civility pledge? One ought to read such materials carefully. Sometimes, the resolution may be captioned or titled as such, but if you read the fine print, it actually functions as something of a waiver of the rights of a dissenting director, limits statutory rights to obtain and share information regarding the finances, or otherwise changes the business of the board or committee from a deliberative body to a rubber-stamping activity. Sometimes, a pledge or resolution can actually make civility worse. One ought not to be browbeaten into agreeing to a civility pledge when what is really needed is for resolution of an underlying dispute and further work to rebuild trust.
Other related article on this blog: Does Civility Still Matter in Community Associations?
March 19, 2024
Can a Homeowner Obtain a Declaratory Judgment Against a HOA?
Every lawsuit must have a rational objective in the form of one or more remedies the Court ought to award against the defendant. Civil remedies can include money damages, possession, or an injunction. However, sometimes the claimant is interested in having the rights or duties of the parties resolved for purposes of present or future dealings. Such rulings allow the controversy to be resolved without one party testing validity by breaching or waiting indefinitely for the opponent to breach whatever instrument or law is disputed. The legal name for this sort of remedy is a “Declaratory Judgment.”
Determination of the size and shape of rights is a reoccurring theme of community association controversies. The difference between being made whole in the wake of a breach versus declaration or rights regarding a legal instrument or statute can seem like an abstraction, because the former would seem to follow the latter. Yet, courts are sensitive to the concern that it is not their job to step in and take over the management of a board or committee. Thus, there may be important questions where the court’s ability to take active jurisdiction is not clear. Declaratory relief can provide a remedy where there may not be a clear breach but there nonetheless is a controversy that is ripe for decision.
Where an actual controversy exists, circuit courts “shall have power to make binding adjudications of right” in the form of declaratory judgments. Va. Code § 8.01-184. Under the English common law (which forms the basis of law in Virginia and almost every other state), declaratory relief was not something that was an option. It is a statutory innovation. The declaratory judgment statutes are remedial legislation enacted to remove the common law requirement of actual injury. Declaratory judgments are binding adjudications of the rights of the parties, guiding them in their future conduct together, relieving them of the risk of taking undirected action incident to their rights, which, without direction, would jeopardize their interests. However, the power to make a declaratory judgment will not be exercised where some other mode of proceeding is provided. Because the driving purpose behind declaratory judgments is to resolve disputes before a right is violated, where claims and rights asserted have fully matured, and the alleged wrongs have already been suffered, a declaratory judgment is not available (because one ought to be proceeding for breach of contract or statute, or some other theory).
In many cases it is not clear whether bringing a declaratory judgment in a complaint or counterclaim is necessary, because the court would like to have to make a finding or ruling answering such a question in the court of addressing other claims. In some cases, some other kind of offensive or defensive pleading fits better. Where granting declaratory judgment is duplicative of the relief already available to the claimant, courts may decline to exercise jurisdiction.
Some counterclaims for declaratory relief are better suited to be presented as pleas or affirmative defenses instead. A counterclaim is a cause of action which seeks affirmative relief, while an affirmative defense defeats the plaintiff’s cause of action by denial or confession and avoidance. In contrast, a counterclaim is a claim for relief asserted against an opposing party after an original claim has been made; especially, a defendant’s claim in opposition to or as a setoff against the plaintiff’s claim. One would expect Virginia state courts to be more permissive in terms of raising issues by counterclaim than their federal counterparts, where there are stricter pleading requirements.
Declaratory judgments with related injunctive relief are common remedies in cases involving community associations. In a 1997 Loudoun County Circuit Court case, Cornwell v. Main St. Village HOA, a homeowner brought a suit in equity for declaratory and injunctive relief, challenging the enforcement of a parking policy as ultra vires under the HOA’s governing instruments. The court entered an order granting a declaratory judgment that the policy was void as ultra vires and entered an injunction against enforcement of the void policy.
In a Chesterfield County Circuit Court case, Robins v. CMH Homes, a property owner counterclaimed against a person exercising architectural approval in a subdivision. The owner sought declaratory and injunctive relief. The homeowner argued that based on the covenants, architectural approval was being wrongfully withheld. The court granted declaratory and injunctive relief in favor of the owner.
In 2011, the Circuit Court of Fairfax County rejected a HOA’s demurrer to the propriety of declaratory relief in a HOA governance case. The Farran family sued Olde Belhaven HOA for violation of the POAA, NSCA, and its declaration, while asking for declaratory and injunctive relief. The Farrans disputed the HOA’s denial of their request to add a roof and deck and challenged mismanagement of reserves. The HOA demurred to the claim for declaratory judgment, arguing the alleged breaches already occurred. The Circuit Court overruled this ground to demurrer because the Farrans’ complaint focused on the interpretation of legal rights under multiple HOA documents and statutes for determinations necessary for the parties to understand how to operate in the future under the governing documents and state statutes.
In closing, bear in mind that while courts traditionally have been reluctant to grant equitable relief, the modern trend is to allow declaratory or injunctive relief to be sought, if the allegations can adequately be proven. The declaratory judgment statutes are supposed to make the courts more generous, not less so. Whether a homeowner has been sued by a HOA or is trying to evaluate whether to bring suit, declaratory relief ought to be considered.
Legal Authority:
Pure Presbyterian Church of Washington v. Grace of God Presbyterian Church, 296 Va. 42 (2018).
Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 (1970)
Bd. of Supervisors v. Hylton Enters., 216 Va. 582 (1976)
Godwin v. Bd. of Dirs. of Bay Point Assn, 82 Va. Cir. 215 (Norfolk 2011).
61A Am. Jur. 2d Pleading § 276.
Black’s Law Dictionary 451 (8th ed. 1999)
Cornwell v. Main St. Village HOA, 42 Va. Cir. 48 (Loudoun Jan. 16, 1997).
Robins v. CMH Homes, 103 Va. Cir. 8 (Chesterfield 2019).
Farran v. Olde Belhaven Towne Owners’ Assn, 83 Va. Cir. 286 (Fairfax Aug. 24, 2011).
February 1, 2024
Christmas at West Hayden Estates First Addition HOA
I enjoy seeing properties adorned with colored lights and other decorations for holidays. It is unusual for a homeowner to set up holiday decorations or host activities that cause a genuine nuisance to neighboring properties. In my view, personalized holiday displays enhance the living experience. It is fun that they are all different. Some are ostensibly religious, others feature Peanuts or Dr. Seuss characters. In December, I saw several inflatable Grinch figures, small and large. The Grinch endures in pop culture because in most people there is a small place in the heart that is jealous of other people’s happiness.
Some people take a different view. To them, that there are certain practices, such as too many lights, leaving them up too long, or too many signs that are not to their taste. Many people who volunteer for HOA leadership positions believe that some residents need firm direction as to what is not acceptable. A process of self-selection brings forth candidates for boards and committees who want to see changes. Their ideas tend to involve stricter rules or increased charges. Personally, I am not much of a libertarian. An orderly sort of liberty requires a few rules. Developers design subdivisions and multifamily buildings according to particular standards and expectations. Usually, the original governing instruments reflect those designs. Many problems seen with HOAs are the result of subsequent boards of directors who want to take the community into a different direction, through a variety of amendments and new policies at odds with what the purchasers fairly though they were buying their families into. Developers rarely show any interest in establishing community standards for holiday displays, because such things are seen as temporary. HOAs are known for instigating enforcement against homeowners who erect holiday displays. Few of those stories ever make it into the news.
One high-profile, ongoing HOA dispute concerns Christmas at West Hayden First Addition HOA in Idaho. Homeowners Jeremy and Kristy Morris have been in disputes with this HOA since 2015. They have a pending appeal in the federal court system. Jeremy Morris is an alumnus of Liberty University in Lynchburg, Virginia. When the Morrises wanted to purchase their home, they reached out to the Board of Directors to ask them if they would oppose the type of Christmas displays and programs that drew crowds to their previous residence. This began a longstanding conflict between the Morrises, the board and other lot owners regarding the holiday activities. Former director Larry Strayer found out about the Morrises inquiry and submitted for the board’s consideration a strident draft letter stating:
And finally, I am somewhat hesitant in bring up the fact that some of our residents are avowed atheists and I don’t even want to think of the problems that could bring up. It is not the intention of the Board to discourage you from becoming part of our great neighborhood but we do not wish to become entwined in any expensive litigation to enforce long standing rules and regulations and fill our neighborhood with the riff-raff you seemed to attract over by WalMart. [sic] Grouse Meadows indeed!!! We don’t allow “those kind” in our neighborhood.
The board did not like the incendiary wording of this draft. The directors made edits to the letter. Director Pat Kellig sent to the Morris family a revised version including the following language:
And finally, I am somewhat hesitant in bringing up the fact that some of our residents are non-Christians or of another faith and I don’t even want to think of the problems that could bring up. It is not the intention of the Board to discourage you from becoming part of our great neighborhood but we do not wish to become entwined in expensive litigation to enforce long standing rules and regulations and fill our neighborhood with the hundreds of people and possible undesirables. We have worked hard to keep our area peaceful, quiet, and clean. Neighbors respect the CC & R’s [sic] and show common courtesy to those around them. These are why people want to live here.
This version was sent by Ms. Kellig to the Morrises without the approval of the other directors. When the Morrises obtained a copy of Mr. Strayer’s initial version, they saw it as evidence of an anti-Christian animus within the HOA.
The case ended up in the U.S. District Court for Idaho. The Judge found that the purpose of the Morrises Christmas program was to support charities and to engage in religious ministry. They did not request or obtain approval from the HOA to conduct the five-day long program. They decorated the house with 200,000 Christmas lights. They invited thousands of people. The attendees arrived by the busload or drove themselves and parked on the street. The program included people dressed as the Grinch, Frosty the Snowman, Clifford the Big Red Dog, Roman soldiers and Santa Claus. Someone brough a live camel and donkey to enhance the nativity scene. The program included amplified Christmas music. Neighbors complained about the traffic, parking and noise problems. As you can imagine, this Christmas program drew strong pro and con reactions within the community.
The Morrises presented evidence that various residents of the community exhibited threatening behavior towards them regarding the Christmas program. Mr. Morris described receiving a “death threat.” However, the Morrises could not prove that the threats shouted at them were made by board members. The Judge later concluded that whatever statement that resident made did not amount to a “death threat.” The opinion suggests that the angry resident said that he would “take care” of Mr. Morris.
At trial, the jury found in favor of the Morrises on their religious discrimination claim. They awarded the Morrises $60,000.00 in compensatory damages and $15,000 in punitive damages. The HOA filed a motion challenging the basis for the jury’s verdict and sought entry of an injunction to order the Morrises to stop conducting their Christmas program on the grounds that it violated the restrictive covenants.
The Judge agreed with the HOA. The Judge’s view was that the HOA letters introduced into evidence did not evidence a discriminatory animus on the part of the board with regard to the family’s Christian religion. The Judge observed that the original version of the letter was not written by a director, and that the version that was actually sent was toned down and reflected a sense of religious pluralism. To some, approval of the Morris Christmas celebration would suggest favoritism towards Christianity. Also, it came out at trial that the members of the board were also of the Christian religion.
The opinion does not state to what extent any of the board’s deliberations were conducted in an open meeting or duly convened executive session. The letters in this case illustrate how directors, managers and lot owners ought to conduct themselves in a civil fashion, realizing that the communications may eventually come out. I don’t understand why the board agreed to field this question. In my view, the covenants ought to speak for themselves, and the board should not be considering architectural “applications” from persons who haven’t even purchased their homes.
Regarding the residents shouting at the Morrises, the Judge considered to what extent the HOA could be responsible for threats made by persons not proved to be directors. A handful of courts have considered to what extent a HOA board may be found responsible under the Fair Housing Act for the discriminatory animus of persons who are not on the board or some other position of authority. HUD interprets the Fair Housing Act to only hold landlords or boards responsible for the discriminatory actions of other residents if the person in authority knew about the discriminatory conduct and had the power to correct it. If the HOA board doesn’t have meaningful ability to control or correct the harassment, then they can’t be held liable for the discrimination. Sometimes, HOAs and condominiums justify harsh litigation or enforcement activity on the grounds that the failure to do so could result in fair housing claims. However, if the declaration and the statutes do not give the HOA the authority to regulate the activity, then this is not an adequate justification.
The judge set aside the jury’s verdict in favor of the Morrises as not adequately supported by the evidence. Readers, please be aware that setting aside a jury verdict is ordinarily considered to be an extreme decision, only taken where there is a miscarriage of justice. A jury’s verdict is supposed to be upheld even if the judge disagrees with the jury’s findings regarding the credibility of the witnesses.
The judge’s decision also considered the HOA’s request for an injunction against future Christmas celebrations by the Morris family. The HOA’s restrictive covenants contained typical provisions that one sees in recorded instruments throughout the country from the past 10-15 years. The “modern” trend is to have general language that allows the HOA to adopt rules and regulations governing the architectural alternations or decorations to the property, and to require lot owners to apply and obtain approval for changes. The judge found the Morrises holiday celebrations excessive and not in keeping with the residential character of the development. The Judge found the impact of the glare, noise, parking and traffic to be a nuisance. The judge didn’t really consider what, if any holiday decorations or observances that the Morris family could have without approval or provide any guidance on what the HOA ought to approve.
The focus of the Morrises and the judge was the question of anti-Christian discriminatory animus. However, what’s important when it comes to religious liberty is the free exercise of sincerely held religious beliefs. The First Amendment to the U.S. Constitution protects us against governmental action that infringes upon freedoms of speech, assembly and religion. Generally speaking, this does not speak to situations where a private citizen or corporation, such as a HOA or landlord, infringes upon such freedoms. In the context of enforcement of HOA rules and covenants, there are other public policy considerations that may make a covenant or rule unenforceable on the basis of civil liberties. For example, a state constitution may have protections of civil liberties that may be broader than the U.S. Constitution.
If this case was all about temporary religious or political decorations, I would be inclined to take Jeremy Morris’ side. From reading this opinion, I can’t tell whether any of his neighbors’ ability to drive to their houses was impaired by the traffic or parking. Also, it’s not clear whether the lights or the music interfered with the ability of a person of normal sensitivity to fall asleep at night, even with the windows closed. That said, I do sympathize with the Morris family’s concerns. For many homeowners, trying to fight their HOA over decorations is too difficult. His case brings some publicity to important issues that might not be otherwise considered by the public.
Lastly, I want my readers to note that Jeremy Morris is an attorney and he represented himself and his wife in this federal lawsuit. Many of the homeowners, officers, directors and committee members who are active in HOA and condominium disputes and business went to law school or work in law offices. It’s natural for people with legal training or experience to find the legal affairs of their HOA to be interesting. However, it’s difficult to represent oneself in a major federal lawsuit. There is an adage, (which is sometimes attributed to Abraham Lincoln), “The man who represents himself has a fool for a client.” This saying is particularly true for attorneys who find themselves the party to the suit. As a result of this case, Mr. Morris is under investigation by the Idaho State Bar, because he made some public statements about the judge who ruled against him. It’s hard to say whether the Morris case would have gone better if they had hired another lawyer to advise and represent them.
The appeal in this case was argued before the Ninth Circuit Court of Appeals on June 5, 2020. That court has not made a ruling yet. The Morris family’s disputes over Christmas at West Hayden First Addition HOA have been going on for eight years and the litigation is not resolved. Whatever decision the appeals court makes will only address narrow questions and give specific directions to the trial court. Courts cannot take the reins of the operation of a private business or government agency. These neighbors are going to go on living with each other until someone moves.
Case Citation:
