Should You Enforce An HOA Anti-Harassment Policy?

Homeowners associations are responsible for the operations of their communities. But, does that include the responsibility to step in when harassment occurs? Is an HOA anti-harassment policy mandatory?

Does a Community Need an HOA Anti-Harassment Policy?

Every now and then, neighbors will get into a disagreement. But, when that disagreement turns sour, harassment can sometimes take place. When that happens, does the HOA have a responsibility to intervene?

This is a common question that many HOA leaders have. The answer, though, is not as clear-cut as you would like it to be. A homeowners association is in charge of maintaining the common areas and operating the community. And addressing harassment issues does not generally fall under that scope of responsibility.

There is an exception, though. The U.S. Department of Housing and Urban Development does enforce the Fair Housing Act. And, according to this Act, discriminatory practices based on race, color, national origin, sex, religion, familial status, or disability are prohibited. If a neighbor is harassing another on the basis of any protected class, the association is likely obligated to intervene.

You will find similar cases at the state level, too. In California, HOA boards are legally required to address any claims of harassment on the basis of a protected class. It is not limited to neighbor-to-neighbor harassment either. It also covers harassment from any party — a board member, a vendor, or a manager. Association boards must take swift action to investigate such claims and put an end to the harassment if any.

If an HOA fails to address the harassment claim, HUD may fine the association, and it can even prompt costly legal fees. In California, the Department of Fair Employment and Housing typically handles such complaints.

Insurance Company Requirement

Although rare, there have been cases wherein an anti-harassment policy directly affects an association’s ability to secure insurance coverage. An HOA may shop for a Directions & Officers insurance policy but find that it keeps receiving rejections.

Creating an HOA anti-harassment policy may increase the chances of getting approved. For some associations, providers have expressly asked the board to come up with a policy before getting insured. If the policy is necessary to secure sufficient insurance coverage, then an HOA should definitely create one.

What Should an HOA Anti-Harassment Policy Include?

While no two associations will have the same exact policy, it should generally include a procedure for investigating claims. When a member alleges that they have become a victim of harassment, the board must investigate to the best of its abilities.

To determine whether harassment has occurred, boards must do the following:

Assess the nature of the unwanted conduct
Evaluate the context of the situation and incidents
Determine the location, scope, severity, duration, and frequency of the conduct
Evaluate the relationships of the parties involved

In addition to investigation procedures, the policy should include:

Limitations on the board’s authority
The definitions of harassment, protected classes, third parties, and neighbor-to-neighbor disputes
Procedures for reporting harassment
Possible actions relevant to the findings of the investigation

Keep in mind that, in California, the victim does not need to have suffered physical or psychological harm. So long as the harassment took place, the board must investigate and take proper action.

Creating an anti-harassment policy is not easy, especially for a board with little to no experience with the law. But, such a policy is often necessary to mitigate the risk of liability. There are plenty of legal experts that can help HOA boards come up with a policy for their own communities. An HOA management company may also be able to help in this area.

Actions to Take

If the HOA board does find that harassment has taken place, the first thing to do is issue a written warning against the offender. Make sure to seek help from a lawyer when drafting this letter. The letter should document the unwanted conduct and ask the person to stop with their behavior. Should the harassment continue, the letter must make it clear that further measures will be taken. These measures can include enforcement actions such as levying fines, temporarily suspending privileges, and the like.

If the behavior continues or escalates, the HOA should refer the matter to local authorities. This is especially important if the offender begins issuing threats or wielding weapons. Make sure to take all kinds of threats seriously, even if the offender has no intention to follow through with them.

In some cases, the HOA may need to assist the victim in taking legal action. Securing a restraining order against the offender is a good place to start. Other times, the HOA can even get a court to remove the offender from the community. Legal action takes time and money, though, and it is also essential to have supporting evidence.

Harassment vs Enforcement

The danger of having an anti-harassment policy is that some owners may abuse it. When a homeowner feels that they have been wronged in some way, they might weaponize the policy and claim harassment. Some may even use it as a way to get out of paying dues or complying with the rules.

In truth, what these owners might call harassment is actually just enforcement. It is easy to misconstrue enforcement actions as the HOA harassing non-paying owners or rule violators. But, as long as the HOA is following procedures, enforcing the rules consistently, and not discriminating against anyone, these claims have no basis.

As such, it is paramount to draft a policy that both protects residents as well as the association. One might consider including a provision that the policy only applies if it is clear that harassment has taken place.

All Things Considered

An HOA anti-harassment policy can be beneficial to a community. And, in some instances, the law does require the HOA board to step in if harassment occurs based on any protected class. But, every HOA is different, and the needs of one association do not necessarily reflect the needs of all associations.

Clark Simson Miller offers HOA management services to homeowners associations and condominiums. Call us today at 865.315.7505 or contact us online to get a free proposal.

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