Condo Media - September 2023 - 39

YOU WANT TO MAKE YOUR CASE...
COMMUNICATE WITH THE OWNER. Issue a written notice informing the unit owner of the violation.
Provide a deadline for ceasing the violation and/or taking necessary corrective action. Follow
your governing documents regarding mandatory " warnings, " time for response, and/or levying of fines.
degree of unreasonableness...and yet
withstand attack in the courts. " Ibid.
While this language most recently
appeared in a Massachusetts decision,
the Massachusetts court was actually
quoting a Florida court decision. With
judges in at least two different states
agreeing upon the above principles, I
believe that this language can be used
persuasively in other states as well.
Enforcement cases
are typically difficult
to deal with and can
cause friction in
communities.
ENFORCEMENT 'CASE'
It is common knowledge that litigation
can be time-consuming and expensive.
So, associations tend to hope enforcement
cases won't require court proceedings.
That said, if there is a " silver
lining " to litigating enforcement cases,
it is that when a case reaches this
level, the association obtains a lot of
consistent assistance from legal counsel.
Short of serving as witnesses, the
matter more or less leaves the hands of
board members and property management
and is placed into the hands of
the association's attorney. But, again,
most associations hope for a swifter
resolution than litigation.
Unfortunately, some cases cannot
be successfully resolved without court
intervention. If there is a bright side
here, I would say it is that the same
actions that constitute proper handling
of an enforcement case on an in-house
basis are the same actions that serve
to prepare a successful case in court.
Fond of acronyms as I am, I recently
developed one to serve as the framework
for handling the early stages of
an enforcement matter:
S
E
SETTLE IT/SUMMON WITNESS PARTICIPATION. At this point, either attempt to settle the case (if
possible on reasonable terms) or, if settlement is not possible, initiate preparation of witnesses.
Unless documentary evidence of the violation exists, chances are that the association, which will bear
the burden of proof in a court case, will need witnesses to testify about the violation.
EVIDENCE...EVIDENCE...EVIDENCE! Finally, collect and consider all evidence possible. If a case will
not be settled and litigation is going to occur, then the association needs to prepare to meet its burden
of proof. In addition to preparing witnesses, the association should collect relevant documents, photos,
videos, police reports (if any), emails, etc. Any evidence that could support the association's case should be
collected and discussed with legal counsel in order to maximize the odds of a win in court.
In the end, enforcement cases are typically difficult to deal with and can cause friction in communities. However,
boards have an obligation to enforce the governing documents, and unit owners and residents have
an obligation to abide by them. By consulting legal counsel, boards and property managers can receive
assistance with developing successful enforcement cases.
n GARY M. DADDARIO, ESQ., CCAL IS A PARTNER WITH THE LAW FIRM
MARCUS, ERRICO, EMMER & BROOKS, P.C. AND A FELLOW OF THE
CAI COLLEGE OF COMMUNITY ASSOCIATION LAWYERS (CCAL).
ADVISE ON THE BOARD'S DETERMINATION. Inform the unit owner of the board's findings in the
matter, and include the rationale for the board's determination of violation, including citing of the
provision(s) of the governing documents that have been violated by the misconduct. Always tie violations
to governing document language or applicable law, since that which is not prohibited is generally allowed.
" [The rules may] have a certain
C
A
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September 2023 CONDOMEDIA 39

Condo Media - September 2023

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