Enforcing the Rules - Rosen Livingston & Cholst

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BACKSTORY A condominium unit-owner seeking to combine his two contiguous apartments carved a five-foot-wide opening in the wall. This opening was not only constructed without the board’s prior knowledge or approval, but also in violation of its rule prohibiting wall openings of greater than four feet in width. This rule was enacted upon the advice of the condominium’s engineer, who warned that wall openings of a width in excess of four feet posed a threat to the structural integrity of the building’s load-bearing walls. When confronted with his unapproved and unsafe alteration, the unit-owner replied, “It’s a fait accompli; you’ll just have to live with it.” This particular unit-owner happens to be a contractor who has renovated roughly 25 percent of the apartments in the building. He also had a long history of withholding payment on assessments to protest building projects with which he disagreed, and bombarding the entire residency with e-mails publicizing his open defiance of policies. The board sued, obtaining a rare temporary restraining order in State Supreme Court, directing the unit-owner to bring his wall opening into compliance with the board’s rules. After some additional litigation, the unit-owner modified his wall to conform to the board’s policy. While he still expresses his opposition on occasion, the unit-owner’s open defiance of policies appears to have ceased.

COMMENT The broad lesson to be derived from this case is that while litigation should always be viewed as the last resort, sometimes it is the only remedy available to a board that feels it must defend the integrity of its regulations in the face of naked defiance by one or more residents. When a rule or policy is enacted in good faith and deemed essential to the health, safety, and welfare of the community at large, and no other enforcement remedy is feasible, litigation may be the board’s only recourse. When this is the case, boards must demonstrate the resolve to follow our judicial process through to its logical conclusion.

Boards do have an array of rule enforcement options at their disposal other than initiating litigation. These include persuasion through communication; mediation; possible denial of access to building amenities; possible imposition of fines; and the possible deterrent of seeking reimbursement of legal fees in the event of successful litigation to enforce the rules. Generally speaking, these remedies should be explored before legal proceedings are considered, since litigation is the “nuclear option.”

However, sometimes litigation is simply unavoidable if enforcement of the policy at issue is considered essential. For example, in the case described above, persuasion through communication and mediation were not feasible in view of the unit-owner’s history of unrelenting public defiance. Additionally, the threats of loss of access to building amenities, imposition of fines, and repayment of attorney’s fees were not effective deterrents as immediate restoration of the overly wide wall was required. None of these remedies would have brought about such an instantaneous result. Only an injunction could have achieved that kind of an outcome.

Finally, any failure to insist upon strict compliance in this situation would have set an entirely intolerable precedent for future alterations, particularly since the recalcitrant unit-owner is a contractor likely to continue performing apartment renovations in the building.

Accordingly, given the particular circumstances of this situation, I suggested an instant resort to litigation. The fortitude in seeing this litigation through to its conclusion resulted in procuring the recalcitrant unit-owner’s compliance and an apparent end to his open defiance of the board’s policies.

From the Desk of BAC:

16:

depositions, 4 pre-trial motions, 3 years to get to trial, 3-week trial, 2 years for appeal, 5 and a half years for the entire case.