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Community Perspectives Top Five "Behavioral Traps" That Lead to Legal Problems

All condominium lawyers have “war stories” that they relish telling. In fact, when attorneys gather, you can hear a veritable festival of such war stories. While most community associations operate in an environment that is rather uneventful, learning from the mistakes of those that become fodder for war stories can be instructive to all. I asked Attorney Frank Flynn, the managing partner of Boston’s Downing & Flynn, a law firm specializing in condominium law, to see if he had discerned any behavioral patterns and traps that lead to “war story” creation. Frank came up with five key “behavioral trap” areas.

1. Not Following the Basics, Such as Reading Condominium Documents: Often boards don’t even make an effort to learn the specified procedures for meetings, or their fiscal responsibilities of how to budget and do assessments. At times, even the beneficial interest schedule is not followed. Such uninformed boards don’t follow the condominium documents’ procedures properly, frequently leading to legal problems.

2. Misconduct and Refusal to Pay: This applies to unit owners who refuse to pay the funds they owe, and the collection fees that they are assessed as a result. These homeowners turn a small financial molehill into a mountain, making it much worse all around. They are often so mad at whatever the issue might be that led to the delinquency, that refusal to pay may become an emotional response for them; even when the lawrequiring payment of condominium fees is quoted for them, they just dig in their heels.

Or, it may start out as a financial issue for them that spirals out of control and becomes worse. As part of the misconduct, they refuse to abide by the rules. For instance, a unit owner was running a hotel out of his unit via short-term rentals, enabling hordesof people to come into the property. Unauthorized pets are another perennial matter that leads to unit owner misconduct and citations.

3. Self-Representation: Boards or homeowners often try to engage in litigation on their own, without a lawyer. Then, when things get out of hand, they suddenly become frantic and start looking around for legal representation, a move that usually comes too late to remedy their situation. The adage that “only a fool represents himself” does hold true.

4. Not Following Attorney Advice: Often, even after enlisting legal help, boards elect not to follow their condominium attorney’s advice. For instance, when a board has been advised about pursuing construction defect litigation, and they do not follow through, they may forfeit their rights and allow further damage to the condominium.

5. And last, but not least, Missing the Point of Governance: Many boards just miss the point that they have governance responsibilities. They often hand over too much power to the manager. Then again, there are even lawyers who don’t understand that they represent the condominium association, and they take direction only from the managers. The board must be clear about their strategic mandate, and that they direct the lawyer, just as they direct the manager.

The lack of clarity about governance is manifested in those homeowners who don’t respect the trustee – they feel that it’s just a neighbor telling them what to do. There is actually a government in place. It appears thatpeople generally just don’t like to be told what to do where they live.

The “traps” that Flynn has identified have one thing in common: refusal by many people living in community associations or serving on their boards to conform to the formalized mandates of community association living. This is quite understandable because we think of our homes as a refuge for our privacy, as our impenetrable castles, as a place for respite from vagaries of life. Thus, the reluctance and resistance to conform to mandates imposedby the association and its governance board.

What is clear is that the boards themselves as a group can fall prey to this expectation of lack of formalized mandates. In my interview research on community associations, though, homeowners and board members cited certainty and predictability of community association living, as stipulated by rules, to be a major attraction of condominium living.

For instance, the absolute majority of respondents loved the fact that they did not have to be worried about coming home one day and finding that their neighbor’s house has been painted bubble gum pink.

But the other factor that may be at play is that people–and this is a socio-psychologically validated phenomenon – overestimate their capabilities and underestimate the risks. In this case, it may lead to erroneous thinking that “those rules don’t have to apply to me,” or “I can change the rules.”

The bottom line: a key place to start for all community association homeowners is to read their condominium's master deed, bylaws and other relevant documents, and recognize that these do mean business. If they don’t like what they read, they shouldpay attention to the vote percentages that would be required to make changes, and then assess whether that is an effort they want to undertake.

Dr. Jasmine Martirossian is an internationally-recognized expert on community associations, board group dynamics and strategic decision-making. She is the author of the best-selling book "Decision-Making in Communities: Why Groups of Smart People Sometimes Make Bad Decisions." Jasmine can be reached at jmartirossian@hotmail.com.

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