A recent Massachusetts condo dispute over the proper disposal of pet waste is the latest high-profile example of frivolous condo litigation—a long-running and costly problem for many HOAs. The incident eventually escalated to the point of obscene gestures and nasty signs and memos, inciting one resident to place bags of excrement, labeled with the name of the condo board president, in common areas. The case, finally reaching a Massachusetts appellate court, received wide analysis among constitutional scholars—and wide grins among news-reading Bay Staters, who, like many outside observers, chuckle at such bizarre and childish behavior. Yet similar incidents are no laughing matter for condo boards, many of whom face lengthy court battles—and unnecessary drains on association reserves—in the wake of legal challenges.
“There are certain claims out there which I as a practitioner think are frivolous, and shouldn’t be presented in any forum,” says attorney Clive Martin at the Boston-based legal firm Robinson & Cole, LLP. “The frivolous claims usually boil down to one person, an unhappy unit owner wanting to vent his or her emotions whether they are well-founded or not.” Yet, as many board members can well attest, one person’s frivolous claim is another person’s serious and heartfelt complaint, and such inequities may often end up in court.
“Representing associations, I see many claims that I don’t think are well-founded and should be dismissed,” Martin notes. “But many times, the people who are thus aggrieved —so aggrieved as to make a formal complaint, which then has to either be remedied or resolved through mediation or small claims or regular session in superior court—are often hell-bent to have their day in court.” In fact, as many dispassionate observers have noted, seemingly-frivolous complainants are often the ones most determined to press matters legally. “And it’s extremely aggravating and inefficient and costly and wearing on the energies of the association,” says Martin, “but I think that’s part of the cost of doing business in an association.”
Are You Serious?
“It’s the veteran who wants to fly a flag. Somebody’s coming home from the service, and the board tells the unit owner that he can’t put a sign,” notes Charles Perkins, Jr., a senior partner at the Westford, Massachusetts-based law firm of Perkins & Anctil, P.C. Perkins—who’s quick to note that he doesn’t feel his firm has ever filed a frivolous claim—says he’s frequently defended condo boards against them. Often times, such cases are filed pro se, with the plaintiff advocating on his own behalf, leaving condo associations no choice but to face a costly legal challenge from an opponent who incurs little or no expense.
“Sometimes that’s the best leverage that the plaintiff has,” explains Martin. “They [threaten a suit, saying] ‘I’m gonna cost you. It doesn’t cost me. I’m gonna represent myself. I’m gonna go to court, file all the papers, and be a big burden on you until I get what I want.’” Many such disputes begin as very small matters, the victim of what Perkins calls “bad facts.” And when such bad facts arise, condo associations often use less-than-wise judgment in dealing with them.