Effectively Resolving Conflict in Your Community
Jan 04, 2023
This article first appeared in the CAI Channel Island's Magazine, Channels of Communication, Fourth Quarter 2022 Issue.
It has been said that conflict in a relationship can be healthy. Can the same be said about conflict in your community? Most can agree that now, more than ever, emotions are high throughout our communities challenging our ability to amicably resolve conflicts between the Association and its residents and between neighbors.
It is not surprising that whenever you have people of divergent cultural, ethnic, social, or political backgrounds, who live in close proximity to one another and who share common property rights and obligations, you will have conflict. Addressing and resolving conflict in your community, however, doesn’t have to be toxic. With a well-defined dispute resolution procedure in place, coupled with a consistent approach to rule enforcement, and an overriding philosophy of respect for differing points of view and allowing everyone to be heard, you can achieve greater compliance with community rules while maintaining a degree of harmony. In the process, you may even improve the health and well-being of your community and its residents.
There are procedural dispute mechanisms provided in the Civil Code that provides an Association much needed structure for resolving disputes. Community associations have at their disposal a three-phased approach to resolving disputes before resorting to the courts. Well drafted rules enforced through these statutory tools, coupled with a climate of open discussion, mutual respect, and tolerance between residents, the board, community managers and business partners, your community can be governed by a comprehensive dispute resolution philosophy that will lead to conflict resolution, or at least keep your community dispute from escalating into costly, time-consuming, and often destructive litigation.
The Dispute Resolution Process Starts With Your Governing Documents
Effective dispute resolution begins with your governing documents. If rules or restrictions are vague or not clearly defined, they cannot be effectively enforced. If the rules are not reasonable or understandable, the members will ignore or reject them outright. Thus, it is critical to an effective dispute resolution philosophy that the governing documents are clear, understandable, reasonable, fair, and capable of being enforced.
Equally important is communicating the rules to the community. The fact that an association’s governing documents are to be provided to every owner at the time of purchase won’t help develop awareness of and compliance with the rules and restrictions. Communication is particularly important to a greater understanding of the rules and their application to your community. Use newsletters, e-blasts, or periodic notices to the community residents to remind them of particular rules. For example, a notice about removing holiday decorations at the beginning of the holiday season, or a newsletter column outlining the pool rules at the start of the summer season, would serve as a reminder and encourage compliance.
Finally, it is advisable to periodically review your association’s rules with legal counsel to determine if your rules are still relevant to your community. Rules should evolve to reflect changes in technology, demographics or the needs and desires of your particular community. Otherwise, the rules become obsolete, foster resentment or can be difficult to enforce. For example, a community that once prohibited the use of portable basketball hoops may consider changing the rule to allow temporary use to reflect an increase in young families with a desire for more recreational use.
Due Process: Notice and An Opportunity To Be Heard
Of course all communities must adhere to its due process requirements both from the governing documents and the Civil Code Section. The new dispute resolution procedure does not eliminate the basic requirement of due process, codified in Civil Code Section 5855. Whenever a board of directors is to meet to consider and impose discipline on a member, the member must have received written notice of the hearing, including the nature of the violation, and must be provided an opportunity to address the board at the disciplinary hearing. This is the first step of the dispute resolution process and most often occurs before IDR.
Because the written notice of violation is a prerequisite to imposing discipline on a member, the notice should be specific, and respectful about the violation committed. The notice should describe: 1) what the member must do to correct the violation, 2) invite the member to a hearing before the board if the violation is not corrected, 3) encourage the owner to correct the violation before the hearing, and 4) warn the owner of the consequences of noncompliance, including the imposition of fines.
Further, the notice of violation should give the owner the benefit of the doubt. A board should not presume the owner committed the violation. The purpose of the hearing is for the board to investigate the facts and deliberate on whether the owner committed the violation noticed and, if so, the appropriate enforcement or discipline.
Internal Dispute resolution (“IDR”)
Following the hearing, and notice of decision following the hearing, if the owner has not corrected the violation or if an owner contests the violation imposed, the association
is faced with the choice of how best to compel the owner’s compliance. Internal Dispute Resolution (“IDR”) provides a second phase of community association dispute resolution before proceeding to court.
At the outset, the IDR statute mandates that associations adopt a “fair, reasonable, and expeditious” procedure for resolving disputes (Civil Code Section 5900 through 5920). The statute requires annual disclosure to owners of the association’s IDR procedure. And gives the association the option of adopting the “default” procedure set forth in the statute or implementing its own IDR procedure, provided it contains the following:
- That the IDR request must be in writing; the owner may refuse, but the association cannot refuse a request for IDR;
- That the association board of directors must designate a board member to meet with the member;
- That the parties meet promptly and in good faith and
that the IDR procedure provide for prompt deadlines for responding to the IDR request and for conducting the meet and confer; and, - That the owner shall not be charged any fee or incur any costs in connection with the IDR.
A resolution through this meet and confer process binds the parties and is judicially enforceable provided the following: 1) the resolution is in writing, and signed by both parties; 2) the resolution is not in conflict with the association’s governing documents; and, 3) the resolution is consistent with the authority granted by the board or is ratified by the board.
Finally, the parties may be assisted by counsel or another person during the meet and confer (although often the presence of counsel may interfere with the parties' ability to resolve matters quickly and amicably.)
Alternative Dispute Resolution: A Pre-requisite To Filing A Lawsuit
The final effort to resolve a community dispute amicably is contained in Civil Code Sections 5925 through 59965 (“ADR”). The ADR procedure requires that before owners and the association file a lawsuit for certain types of claims, that parties endeavor to submit their dispute to dispute resolution with a third party. The categories subject to this final prelitigation procedure includes disputes over the governing documents, certain provisions of the Corporation Code, and the Davis-Stirling Act.
Similar to IDR, a party initiates ADR by serving a Request for Resolution. But unlike with IDR, an association may decline to participate in ADR by rejecting the Request for Resolution, or allowing the thirty (30) day reply deadline to lapse.
The Importance of Civility
Finally, despite the well-defined statutory framework for community dispute resolution, there remains an underlying frustration in a resident’s inability to discuss, engage, exchange, debate, and disagree about community association issues civilly. Conflict resolution is more than IDR or ADR. No amount of dispute resolution protocol can overcome
the emotional hostility felt by a community resident who
feels she has not been heard or he has not been addressed with fairness or respect. Community leaders must recognize that the absence of civil discourse is impacting the ability of our community associations to effectively govern. To be effective in resolving conflict in our communities, community associations should strive to find common ground and encourage open, respectful discussion. Only by recognizing what each of us has in common can we effectively encourage compliance, resolve conflicts, and find common ground to move forward on important community issues.
We encourage all associations to make a commitment to a better community-wide dialogue on all issues by adopting CAI’s Civility Pledge as part of the community’s dispute resolution protocol here >> www.caionline.org/CivilityPledge.
