Q. A unit owner in our condominium reported to the board an alleged violation by another unit owner of the rules and regulations of the condominium association. A member of the board then disclosed to the alleged rule-breaker that a complaint had been received by the board. This disclosure has now caused friction and even an attempted confrontation between the alleged rule-breaker and the reporting unit owner. Should there be any ramifications for the board member for divulging this information?
— Caught in the Middle
A. “G.L. c. 183A, § 10 of the Massachusetts Condominium Statute provides in relevant part that the condominium trust [via is board members] has the power to ‘conduct litigation and to be subject to suit as to any course of action involving the common areas and facilities or arising out of enforcement of the by-laws, administration rules or regulations in the master deed,’” says Douglas A. Troyer, Partner at law firm Moriarty Troyer & Malloy LLC, in Braintree, Massachusetts.
“Reporting an alleged violation to the board is the proper course of action that a unit owner should take in order to provide notice to the board of any violations of the rules and regulations of the association. Upon receipt of such notice, the board should investigate and determine whether a violation of the rules and regulations has actually been committed, and if so, then determine what, if any, course of action should be implemented to cure the violation.
“In order to investigate the complaint, a board usually will need to advise the offending unit owner of the complaint and seek to obtain that unit owners’ position and side of the story in order to make an informed decision. Whether to disclose the reporting unit owner’s identity is a fact-based inquiry that must be undertaken by the board in handling its investigation of complaints as they come in. In some situations, the reporting unit owner wishes to remain anonymous, or there may be safety considerations that must be accounted for before providing the identity of the reporting unit owner.
“In other situations, it may be clear as to who reported the violation. Thus, a board should take into consideration the surrounding facts of the complaint and determine what must necessarily be disclosed in order to properly enforce the rules and regulations of the association. With that said, the board is charged with the power to enforce the rules and regulations of the condominium association, and in doing so may need to proceed with litigation to seek enforcement.
“If a board member discloses facts and strategy concerning the enforcement that would be considered subject to the attorney -client privilege, such disclosure to anyone outside the board and its attorneys could be considered a violation of that board member’s fiduciary duty, and certain actions by the remaining board members may be necessary to protect against such disclosures from happening again.”