Legally does the HOA’s property management company have to disclose to me who filed a complaint against me?
There are two possible scenarios here: Either the management company knows who the complainer is and they are not telling you, or the HOA or property manager itself is passing on an anonymous complaint about you.
Let’s address both in turn.
In the case of anonymous complaints, I would suggest that if the concerns are trivial, and do not even rise to the level of a covenant violation anyway, the management company should just ignore the complaint as petty griping.
If the concerns are not trivial, the manager should take steps to verify the complaint’s validity – and then notify you as if it were acting on its own initiative. Any anonymous complaints that cannot be independently verified should be filed and closed.
The HOA or board should only act on complaints it can verify. After all, if the complaint is valid, and you are, indeed, in breach of your homeowner’s covenant, then who cares if the complaint is anonymous or not? If the complaint is, indeed anonymous, originally, then there’s nothing for the management company to disclose. You have to get your own house in order, regardless!
At this point, unless there’s a criminal proceeding or someone has filed a lawsuit against you, then the complaint against you is probably not a matter of public record. Yes, the 6th Amendment guarantees criminal defendants the right to confront their accusers in a court of Law. But the HOA is not a criminal court, and it’s not even a government agency (although there are some elements of case law that recognize that HOAs take on “quasi-government roles”).
The 6th Amendment does not create an enforceable right to compel a private organization to share information with you.
Occasionally, a property manager must face the unpleasant duty of being the messenger of unwelcome news. In this role, they perform a valuable function: HOA’s representative, the property manager, can play “bad cop,” and simply say “we’ve received a couple of complaints about noises coming from your house at night.”
This gives you the opportunity to correct the problem, and people in the community can have their concerns addressed without having to fear retribution or retaliation by their neighbors.
Sure, we’d all prefer to deal with people who are bold enough and honest enough to confront us directly with their complaints and keep it off the record. But not everyone is as comfortable with confrontation as we are, and the HOA’s complaint process provides a needed ‘safety valve’ that still allows the shy or timorous among us a chance to make their concerns heard.
Now, the grey area arises if there’s a dispute. You may say “no, I am not in breach of any covenant,” and then the Board must determine whether they can pursue and enforce it.
Once that happens, then things get serious; if someone falsely accused you to the Board, and you can prove it, and it caused you economic harm or harmed your reputation, then it is possible that whoever initiated the complaint committed the tort of defamation against you.
So you could, possibly, file a lawsuit against the Board and get a judge to issue an order for the HOA or management company to release the records, as part of the discovery process.
This is a ridiculously expensive process to go through for most neighbor spats, and is best thought of as an absolute last resort.
In the end, in order to enforce anything against you, the HOA must be able and willing to put someone on the stand to testify, in writing, of the accuracy of the complaint against you. If the only person who can verify the problem will not take the stand or go on the record, they have nothing to enforce.
If the complaint was actually verified by a Board member or authorized representative, then the board member will take the stand, presumably. If a complaint originated anonymously, or the HOA is preserving the anonymity of the complainant, then they are taking the responsibility of the complaint on themselves.
If they aren’t willing to do that, and all they have to go on is anonymous complaints, then they probably cannot discipline you.
That’s not to say they won’t try, but if they do try, you may well have a nice claim against their liability insurance policies, at the end of the day!
If you think you have a cause of action against the complainant for defamation, and you cannot identify the complainant, then your cause of action is against the Board, or the member who verified the complaint, and recommended to the HOA that enforcement action go forward.
Are you a Board Member?
Board members, and especially Board presidents, are going to get an awful lot of criticism. It comes with the job. I don’t care how good or ethical you are – if you are in a position of leadership for a while, someone somewhere, is going to have a problem with you – and not always express it in the most mature fashion.
If the complaint is trivial, don’t worry about it. You need a thick skin in this business. If the complaint is merely accusing you of being dumb or making a bone-headed decision, then take legitimate criticism under consideration and let the rest go.
If you are being accused of a crime you didn’t commit, however, then whoever initiated the process may have committed defamation per se. That is, defamation on its face. In this case, whoever it is has a much higher burden of proof to demonstrate that its accusations were true.
While I wouldn’t suggest going after every little complainer, some accusations, assuming they are false, cannot go unchallenged. For example, if someone were accusing me of embezzling money from the HOA, or taking bribes, and the charges were false, I would answer those charges so fast and forcefully that it would make peoples’ heads spin. The accuser, faced with a defamation suit, then either has to provide proof, or will wind up paying damages and making a public admission that the charges were false.
And since they made old-fashioned honor-dueling with sabers, rapiers or pistols illegal for some reason, alas, the courts may be the next best option.
|Author Bio Writing about personal finance and investments since 1999, Jason Van Steenwyk started as a reporter with Mutual Funds Magazine and served as editor of Investors’ Digest. He now publishes feature articles in many publications including Annuity Selling Guide, Bankrate.com, and more.|