Let’s say that your condominium association has not had an election for board of directors in two years, contrary to the requirements of your legal documents. Or let’s say your homeowner association held an election but refused to show you the actual ballots, claiming that voting was by secret ballot.
What can you do? Where can you go for assistance?
Clearly, you can retain an attorney and file suit, but that is time-consuming and expensive and the results are always uncertain.
There are organizations in many parts of the Washington metropolitan area that can assist.
The oldest is Montgomery County’s Common Ownership Communities, which was established in January 1991 and has 15 commissioners appointed by the county executive and confirmed by the county council. Today, homeowners can also seek assistance in Prince George’s County and Charles County, Md., and in Virginia, the Common Interest Community Ombudsman can help resolve disputes.
Although the District of Columbia has an office that deals with condo conversions, and provides information, it does not handle disputes.
Common Ownership Communities includes condominiums, homeowner associations and cooperative housing. It does not include civic associations. If you have a grievance against your association, you must first make an attempt to resolve it with your board of directors. If that fails, you can file a formal complaint with the Montgomery commission. There are restrictions: For example, your disagreement cannot involve title issues, or whether a collection action against you was proper. More importantly, the commission will only handle disputes involving official actions of an association’s board of directors; it will not get involved in private disputes between individual owners.
The commission will attempt to mediate disputes, but if that fails, you can have a hearing before a volunteer panel of experts. The decision of the panel is binding and can be enforced in the Maryland courts. The two situations raised at the beginning of this column, for example, were real incidents in which the commission determined that elections must be held and established a binding timetable for the election that the association had to follow. And the commission also held that Maryland law — which takes precedence over any inconsistency in the association’s legal documents — required the ballots to be made public.
Although some local Virginia counties, such as Fairfax and Prince William, have limited resources to assist homeowners, the main source of assistance comes from the Commonwealth itself. Back in 2008, the Virginia legislature created two agencies: the Office of the Common Interest Community Ombudsman and the Common Interest Community Board. The board is responsible for administering the various property registration laws and is authorized to promulgate regulations. “It is hard to believe that the board celebrated the third anniversary of its first meeting,” said Lucia “Pia” Trigiani, chairperson of the board. “In those three years, the board had adopted regulations to regulate licensure of management firms, and to address the complaint process to be followed by the ombudsman. In addition, we have revoked the license of a management company here in Virginia.”
Heather Gillespie is the Virginia ombudsman. Her office is charged with assisting homeowners and associations with their rights, answering questions, providing information concerning common interest communities, and receiving and compiling information relating to complaints that have been filed against community associations. She has the authority to issue non-binding explanations — but not interpretations — of laws and regulations governing associations.
However, her office does not have enforcement authority, and, unlike in Montgomery County, she cannot resolve disputes. But also unlike Maryland, community associations in Virginia are required to establish reasonable procedures for the resolution of written complaints from the members of the association and other citizens. Any final adverse decision rendered by an association must be sent to the Common Interest Community Board within 30 days after it is issued.
What kinds of complaints does the ombudsman receive? In its annual report for 2009-2010, the ombudsman reported receiving 271 complaints. According to the report, the majority of them have to do with allegations of inappropriate use of power by the board, such as not responding to unit owner issues. Other complaints involved issues where the developer refused to relinquish control of the association to the owners, contrary to the requirements of applicable law.
Community associations are here to stay and growing yearly. According to statistics compiled by the Community Association Institute, the national trade association concentrating on community association issues, in the United States in 2010, there were more than 309,600 communities, 24.8 million housing units, representing more than 62 million people.
Short of bringing a lawsuit, homeowners and condo owners can have their complaints resolved through alternative dispute resolution, which can be mediation or arbitration. The Community Association Institute encourages homeowners to use this option to avoid costly litigation. Indeed, Virginia law specifically permits condominiums to provide for arbitration of disputes or other means of ADR. Even if there is a lawsuit pending, any person who wants to end the dispute may submit it to arbitration and agree that such submission will be entered into the court records. If the other party agrees, the decision of the arbitrator will be final and enforceable in a court of law.
Today, there is a large body of community association law dealing with such matters involving parking, pets, pianos, pools and even presidents. The agencies that exist in Maryland and in Virginia are important mechanisms for resolving disputes — even if their jurisdiction is limited.
Benny L. Kass is a Washington lawyer. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. For a free copy of the booklet “A Guide to Settlement on Your New Home,” send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036.