What happens when your neighbor blasts his music too loud? Complains about your trees covering his yard? Fills his garage with fireworks for Fourth of July – and shoots them off every night for a month beforehand until midnight? Gets angry with you and dumps garbage on your lawn? What should the Association’s Board or manager do, if anything, when they receive the call from the affected homeowner?
Oftentimes, these types of problems are referred to by Boards and managers as “neighbor to neighbor” disputes. They become defined as such because they are disputes, of one nature or another, lodged by one owner against another owner, but generally do not affect either the common areas or more than a few other owners. Other common examples, in addition to those identified above, include parking, animals, and smoking.
The behavior may indeed be a violation of the Association’s restrictive covenants or rules, but the question is whether the Association, through the Board or manager, has an obligation to step in to help resolve the dispute or take action. Most of the time, the Board will determine that if the behavior affects only one, or a small group of owners, it will not use the Association’s limited resources to bring enforcement action. Colorado courts have upheld the Board’s authority to exercise its business judgment in such situations. The Board may want to adopt a policy that addresses how it will handle neighbor to neighbor disputes.
But, the issue remains unresolved. What can be done by the affected owner?
There are a number of alternatives that the affected owners can pursue, and each should be evaluated based on the severity of the situation. First, if the violation is such that it constitutes a crime, a zoning violation or other violation of the local municipal ordinances, the police, zoning enforcement officer or other code enforcement officer can be called. As you might imagine, this approach should be used judiciously, as it will draw a permanent line in the sand, never to be erased so long as the owners continue to reside in the community.
There are alternatives to police or code enforcement protection. The first alternative includes neighbor to neighbor conversation or negotiation to resolve the neighbor to neighbor dispute. The following are some steps that the affected neighbor might want to consider:
1. Find out the facts. Determine whether this disturbance is a one-time problem or a constant occurrence.
2. Vent your feelings before you approach your neighbor: Talk to a friend or spouse, whack your bed with a tennis racket or roll up the windows in your car and scream. The goal here is to bring a rational approach to your neighbor, not one that is emotionally charged.
3. Write it out. Get clear about what is bothering you and what you want done.
4. Figure out who is responsible for the disturbance. You want to negotiate with the proper party.
5. Talk to your other neighbors and find out whether they share your concern. This is simply for your information; try not to aggravate the situation by building an angry alliance.
6. Introduce yourself. Arrange a time to meet with your neighbor and choose a neutral location.
7. Ease into it. Describe the issue without inflammatory language. Try to avoid putting your neighbor on the defensive right out of the gate.
8. Create a cooperative atmosphere. Rather than attacking your neighbor, ask for assistance in finding a solution. Listen to you neighbor’s viewpoint. Take appropriate levels of responsibility.
9. Find common ground and focus on what you do agree on.
10. Search for a solution that satisfies both parties’ needs. Compromise.
If this personal approach does not yield results, there are some other alternatives, all of which require some type of third party intervention. While the Association does not need to be involved, it can provide a forum and a process for resolution of the dispute. It could request volunteers from the community who might be willing to serve on a dispute resolution committee to help negotiate a resolution.
The parties themselves could agree to take the matter to mediation. Mediation involves a negotiated settlement between the parties, that once reached, is legally enforceable. However, neither party, as part of the mediation, is bound to any suggestions of the mediator. Many local municipalities provide dispute resolution services for little or no charge. Typically this service is provided by people who have some type of training in mediation or dispute resolution. The owners themselves could agree to hire their own mediator.
Should mediation not work, the parties could agree to arbitrate the dispute. Arbitration typically involves a third party decision maker (not a court), who will make a decision as to what the parties will or won’t do. Submitting a matter to arbitration requires both parties to agree that the dispute will be arbitrated. One party cannot force the other party into arbitration. Like a mediated settlement, an arbitration decision is legally enforceable.
The last resort in dispute resolution should be initiating a lawsuit. Lawsuits are: (1) time consuming; (2) expensive; (3) public; and (4) emotionally expensive. The result of a lawsuit is often that neither party gets what they want, and the outcome can be similar to calling the police – there becomes a permanent line in the sand for so long as the owners are neighbors.
Disputes in higher density housing (whether in a single family home community or a high rise condominium) are inevitable. Methods exist to bring about dispute resolution, and each situation should be evaluated on its own merits to determine which process fits. In the end, if the affected owners intend to live in the community for the long term, some type of negotiated resolution will work much better than a resolution imposed by a third party.