Board members and managers are frequently asked to intervene in disputes between neighbors. The challenge is determining when the association has a legal obligation to act and when the matter is better left to the owners involved.
The answer begins with first defining what constitutes a neighbor-to-neighbor dispute.
Neighbor-to-neighbor disputes generally include issues such as noise, odors, nuisance conduct, occupancy concerns, and other conflicts between residents. They do not include association-to-owner disputes such as failure to pay assessments, architectural violations, leasing violations, or failure to comply with administrative requirements imposed by the governing documents.
A neighbor-to-neighbor dispute may involve either an objective or a subjective violation of the declaration.
An objective violation is one that can be readily identified and documented. An owner keeping a prohibited pet is a common example. If the declaration prohibits ferrets and an owner keeps a ferret, the violation either exists or it does not.
A subjective violation is different. Noise complaints, odors, and certain nuisance issues often depend on the facts and circumstances. One owner’s “excessive noise” may be another owner’s ordinary use and enjoyment of their property.
This distinction is important because it often determines whether the association has a duty to intervene.
When an association receives documented notice of an objective violation of a use restriction contained in the declaration, the association generally has an obligation to act. Associations are charged with enforcing the declaration. Failure to enforce a known violation can create significant problems for future enforcement efforts.
One of the most common concerns is selective enforcement. An association cannot choose to ignore a documented violation by one owner and then attempt to enforce the same restriction against another owner later. If the board elects not to pursue a known violation of a particular restriction, it may find itself facing arguments that the restriction has been waived as to similarly situated owners.
That does not mean all use restrictions become unenforceable. Selective enforcement issues are generally limited to similar violations. Choosing not to enforce a pet restriction does not necessarily affect the association’s ability to enforce parking restrictions, leasing restrictions, or architectural standards. However, it may impair the association’s ability to enforce that particular pet restriction against other owners in the future.
For that reason, boards should think carefully before deciding not to pursue a documented, objective violation of the declaration.
Subjective violations present a different analysis. Many governing documents contain nuisance provisions that require boards to exercise judgment. In those situations, the board must evaluate the severity of the conduct, the impact on the community, and whether sufficient evidence exists to support enforcement action.
In some cases, a subjective violation can become objective. For example, if the complained-of conduct violates a local ordinance, governmental regulation, or other applicable law, the association may have a more concrete basis for intervention. Many governing documents specifically incorporate this concept.
Absent evidence that the conduct violates a statute, rule, or ordinance, the board must rely on its business judgment in determining whether intervention is appropriate.
Factors to consider include:
- Is the alleged violation objective or subjective?
- How dangerous is the conduct to the health, safety, and welfare of the community?
- How pervasive is the conduct? Does it affect only one owner, or does it affect multiple
residents? - How severe is the violation?
There is no single rule that applies to every neighbor-to-neighbor dispute. Some situations require immediate association involvement. Others are better resolved by the owners themselves.
A Special Note on Discriminatory Harassment
Boards should also be aware that certain neighbor-to-neighbor disputes may trigger obligations under federal fair housing laws.
Under Fair Housing Act regulations, specifically 24 C.F.R. § 100.7(a)(1)(iii), an association, its board of directors, and its property managers may have a duty to act to prevent one neighbor from harassing another neighbor based on race, color, national origin, religion, sex, familial status, or disability.
If the association knows, or should know, about the alleged discriminatory conduct and has the authority under its governing documents to take corrective action, it may be required to do so. Most governing documents contain nuisance provisions or other enforcement mechanisms that provide the authority necessary to address this type of conduct.
In many cases, the first step is to document the incident and issue a written demand requiring the conduct to cease. If the conduct continues and the association has fining authority, fines may be appropriate. Repeated violations may ultimately require the association to seek injunctive relief through the courts.
Unlike many ordinary neighbor disputes, discriminatory harassment may create legal obligations for the association, even when the conduct occurs between residents rather than between the association and an owner. For that reason, boards should take complaints involving protected classes seriously and evaluate them promptly with the assistance of legal counsel when necessary.
When to Seek Legal Counsel
Boards should be careful not to overlook situations where the governing documents, fair housing laws, or enforcement obligations require action. Taking the time to evaluate the nature of the violation, the available evidence, and the association’s authority to act can help protect both the community and the board. When there is uncertainty about the association’s obligations, seeking legal guidance early can often prevent larger problems down the road.
The key is knowing the difference between a dispute that owners should resolve themselves and one that the association is obligated to address. Consistent enforcement, sound business judgment, and timely action when required remain the best tools available to boards navigating these often-challenging situations.
Neighbor-to-neighbor disputes can present difficult enforcement decisions, particularly when nuisance complaints, selective enforcement concerns, or fair housing obligations are involved. Boards that take a thoughtful, consistent approach to evaluating complaints are better positioned to protect both the community and the association. When there is uncertainty about whether the association has a duty to act, seeking legal guidance early can help avoid costly mistakes and reduce the risk of future disputes.
About The Author
Philip W. Lehman
Senior Associate, Winter Capriola Zenner
Philip W. Lehman is a Senior Associate at Winter Capriola Zenner, focusing on the representation of condominium, townhome, and homeowner associations throughout Georgia. He regularly advises association boards and community managers on governance matters, covenant enforcement, collections, contract negotiation, and the interpretation and amendment of governing documents.
His work reflects Winter Capriola Zenner’s practical, solutions-focused approach to helping community associations address legal challenges, maintain effective governance, and promote the long-term success of their communities.