verbally abusive owner

Three neighbors attended our recent open session. For several years they have experienced multiple racial rants from Evil neighbor. Their original issue was a sagging 40 year old wooden fence that partially connects to the 4 properties. They tried to talk to her about replacement but she would have none of it, screaming racial slurs and various other uglies! The fence heavily sags for 1 neighbor and if she's in her back yard, evil neighbor restarts her harrassment...which quickly escalates to terrible stuff. She restarts her rants if she sees them outside. Apparently 1 of these owners notifed our PMC 2 years ago and was told "not our problem, call the police." FYI, we are 140 single family homes...nice community (1987).
One affected owner read a section of Ca Fair Employment and Housing (FEHA) that "associations have potential liability for acts of nonemployees with respect to harrassment." PM said she will connect with LEGAL about this alledged HOA responsibility. Our legal is known for several miscalls..."OOPS!" Our Documents have no mention of Harrassment.
A side note: I am a retired RN/NP; I thought maybe elderly evil neighbor had dementia? "Does she have family?" Response: "Yes, she's often there and stands beside Mom, equally racist slurs!" While I await PM/legal F/U, how can any community be expected to be involved with the mental health (legal $$$$$$$) of any owner or renter. How is it enforced? Curious to hear your comments. Thanks-

A board is required to investigate problems like this.

https://hoalaw.tinnellylaw.com/addressing-neighbor-to-neighbor-disputes/

The state of Minnesota has a harassment law that we incorporated into our Rules and Regulations. The behavior of residents is the responsibility of the HOA and possible the police.

Our Association made a policy that we would only get involved in neighbor v neighbor disputes if complaints were received from two or more lots on the same issue.

I will say that the articles are interesting.
The first thing that I thought of was what is it they think the HOA can do to correct it.
However, the HUD article spells it out:

Corrective actions that a HOA’s directors or officers can take to end discriminatory practices may include verbal and written warnings to offending owners or tenants, reporting harassing conduct to the police, and establishing an anti-harassment policy and complaint procedure, among other things. When the perpetrator is an employee or agent of the HOA, corrective actions may include things like training, warnings,

I also like the attorney's notation that there are some issues, such as the OP presented, that are not Neighbor v neighbor complaints:

Boards are cautioned that legitimate complaints by residents of harassment on the basis of their membership in a protected class are not neighbor-to-neighbor disputes and must be investigated and addressed. See Code of Fed. Reg. §100.7(a)(1)(iii).

I appreciate the great responses and the Tinnelly Law group link (2021). Moving forward, how is this "depending on the situation" enforced? Yes, there is video evidence of the harrassment. No, our documents ('87) + R/Rs don't address this harrassment. Let's assume evil neighbor won't attend ADR. What is the expected path our Board should legally take? Our prior HOA legal advice has been incorrect on several occasions (don't get me started!) Can Board ACTUALLY STOP mentally-ill actions performed by an owner? What is the expected legal
costs $$$$$$$? Mental illness is a sticky wicket. How does the HOA avoid becoming "the harasser?"

I am so impressed with TerriS6's and TimB4's contributions to this thread. I feel I know Fair Housing law pretty well. The two of them with their statements and citations nailed it AFAIC.

TimB4 even cited the specific C.F.R. section. Holy mackerel. The latter is one of many regulations enacted by HUD to support statutory requirements (here meaning the Fair Housing Act's requirements).

I am just talking the law and reality here. I know people (myself among them) are tired of "wokeness" and "cancelling" run amok. AFAIC there is "wokeness" and "cancelling," and there is harassment that genuinely crosses the line to violating state and federal law, and with high stakes.In my opinion here the stakes are approaching high. As in the neighbors might very well file a HUD complaint and HUD may very well process this situation as a problem and compel the HOA to lawyer up. Big bucks.Do the CC&Rs have a nuisance clause?

Does the HOA have authority over the fence? E.g. is it unsightly enough that it perhaps violates the covenants?Spot on. Let's keep in mind that the owner's daughter is now also allegedly creating an environment hostile on the basis of race. More below.Again, spot on. Good job. I am going to translate this a bit to maybe help focus the discussion. Or at least it will give me more focus.

JackieB4 is asking whether sending violation notices to an owner who may be mentally disabled, whose violations may be due to her mental disability, might itself be creating an environment hostile on the basis of disability.

Rights are competing here: The neighbors have a right not to be discriminated against (via an environment hostile on the basis of race). The owner has a right not to be discriminated against (via an environment hostile on the basis of disability). In other words, what if the allegedly disabled owner (or her attorney) comes back and says, "A mental disability is at work here. Stuff comes out of my mouth that is not nice. I cannot control it." I say: Let's cross this bridge if and when the HOA comes to it. Right now the HOA has zero documentation of any mental disability here. The fact that the woman lives on her own says to me she has a certain amount of mental "legal capacity," meaning she is responsible for her actions including words.

I advise bringing the HOA attorney into this, because I would want the HOA to send a letter that was quite grave and legal in tone regarding the racial harassment (by both the owner and her guest, the daughter). HUD is watching. The HOA needs to document that it is not looking the other way at this.

If the fence violates the covenants, send a violation notice about the fence as well.

A cease and desist letter is not a violation notice. A C&D letter is a warning that if the conduct continues, then the HOA might sue or take other action. Hence I do not see the need for a HOA policy to be enacted before sending a C&D letter.

You only place liens for unpaid dues or work HOA did not get paid back for. Foreclosure is for unpaid dues only. It is foreclosing the lien. A fine is a punitive charge one has to have a fining schedule to enforce known to every member.

The HOA can fix or remove the fence in some HOA documents. If allowed, then the HOA can remove or fix fence. Send the owners the bill. If not paid then can place a lien for it.

Our HOA only approves fences. We do not own them. If they need fixed or torn down we tell owner to do it in x days. If not we choose a vendor to do it of our choice. Send you the bill to pay. If not paid in x days. We lien.

The more police reports the better in record. It will help if the people involved go to court with each other. Proves harassment.

JackieB4, I think the very first step should be to go after the fence. Get the facts on why the fence is not being repaired. The HOA has a duty to do so. Report back here as needed.

After all, the fence is what started these nasty exchanges.

I want to be clear that TerriS6 brought up the C&D letter. I let myself get sucked into her line of thinking. I do not like going down a rabbit hole of speculation.

I wrote that the HOA should send a letter, in consultation with the HOA attorney. And I do mean the board should sign the letter. I did not mean the HOA attorney should send the first letter. Why? Because I think this is too much for a first communication on this subject. The owner is likely going to go ballistic with the first letter, regardless of who sends it. Too bad. For the HOA's protection, it has to be sent IMO.

Subsequently and as needed, additional letters should be sent, elevating the tone. At some point if still needed the HOA attorney should send a C&D letter. That's not me making cr-p up. The courts expect attorneys to send many demand yada letters before showing up in court. The courts are backed up enough. Court time is expensive to the taxpayer.

AFAIC:

Trying to anticipate where things will go here has value. But also so too does taking things one step at a time. It is tiring trying to figure out all possible permutations of "what might happen." Things can change markedly from one day (or week or month) to the next, meaning all that energy spent speculating is likely wasted. E.g. maybe the neighbors will file a complaint with HUD or more correctly the California Civil Rights Department, which will per the law take the lead on state and federal fair housing violations. (per https://www.hud.gov/program_offices/fair_housing_equal_opp/partners/FHAP/agencies#CA).

You are a volunteer. All volunteers have to monitor their time and energy so as to be efficient, IMO.

Off the top of my head, if this owner continues hurling racist epithets; the letters are elevated in tone to the point that the attorney has sent a C&D letter; and the letter is ignored; then the board should consult with counsel and consider filing suit. I suspect the HOA attorney will hesitate to do so, because it could get very messy legally and certainly expensive, as you say.

To cut an owner a break because she is a 'crazy old lady' does not sound right to me. The other neighbors have rights. Why should their rights be ignored? Then again you are the boots on the ground and know all parties best et cetera.

The options after sending a C&D letter would all be bad, no question.

The point is to get some documentation on record that the HOA took steps to stop a hostile environment on the basis of race et cetera.

ElleN, Agree the fence is/needs repair and plan to follow your advice. The 2 owners brought the HARRASSMENT issue to open session. Further discussion led to initial sagging fence as their reason for involvement with her. Honestly I was a bit overwhelmed (new issue for me, crying HO, mental health issue ?, prior erronous Legal opinions, etc). The timing seemed inappropriate to focus on sagging fence vs ugly racism. But live and learn...I love this site!!
Agree, a basic letter from us/BOD would be a good first start. I didn't catch the distinction...but makes 100% sense. Less is more. Also noted "additional letters elevating the tone" before an attorney C-D letter is great advice. Again, thanks.
LOL- yes, speculation "what will happen if?" is often futile? Selective enforcement isn't part of my DNA but (as retired NP) the obvious mental health issue needs attention so here I am-lol. I have never met this women but rumors have it she is given a wide berth by most neighbors. Eventually filing suit on a crazy person sounds so crazy and borderline bulleying to me. I appreciate your timely efforts to educate us. Also, this has brought light to a very disturbing issue. Onward.

Riley, Great resource. Thanks

JackieB4, the details of the situation have sunk in more, thanks to your posts. I am going to backpedal a bit and suggest that the board focus only on getting the fence fixed. Leave the alleged racist stuff alone. Why? Because what happened with the racial slurs is not the same as say someone going out of their way to cause hostility on the basis of race. The older woman apparently(?) gets all antsy, hurling racist remarks, when these folks talk to her about the fence. It is a shame the older woman responds like this. But it's not "unprovoked," so to speak.

There is harassment and there is people getting angry over a situation that has nothing to do with race per se and has everything to do with a sagging fence and I guess either the cost of repairing it or allowing others to repair one's property.

People have a right to believe xyz about such-and-such race, religious culture, ethnicity, gender, disability and familial status. If they are actively trying to harass others because of these beliefs, then this is where the legal problems arise.

I tend to think HUD (for one) likely would not see this as a battle worth taxpayer dollars to "rectify." This is because "hostile environment" involves either one, terribly egregious instance of hostility on the basis of race (et cetera) or a pattern of regular harassment/hostility. I do not think this situation is egregious enough. Nor do I think there is a "pattern."

To the folks who had these slurs directed at them: Tell them the HOA is pursuing the fence violation with all its might. Some patience will be needed.

At this point maybe "focusing only on the fence" is where you find yourself too. I am not sure from your latest post.

Let's see if anyone else at this forum thinks otherwise.

Dean what are you talking about? A MC is hired contractor to the HOA. The HOA has no power unless it is fine or repair to bill.
What super powers do you think the HOA has? Fines can not be basis of liens or foreclosure. They are just punitive charges.

If the HOA chooses they can tear down the fence or repair it at the HOA cost. If they do then send the bill to the member. If not paid then that can have a lien for that amount.

Lawsuit is a huge bad idea. Not worth pursuing.

So you send a violation notice from a lawyer. Who cares? What punishment they going to get for not doing anything?

When I read DeanJ's post, this is exactly what I thought. Well done, sir.

I agree this sounds like a pattern of racial harassment. Particularly when the target is saying she cannot enjoy her own backyard. Conduct like this is exactly why the Fair Housing Act exists. Then get counsel to help with a letter from the HOA and general guidance on this situation. Either because it is the right thing to do or for liability reasons. People can take their pick.

I almost wish HUD would step in, with letters to the HOA //and// the crazed owner.

Good for you for making sure there is documentation, one way or the other.

I hope you are remembering you do not have to run for and serve on the board.

ElleN- our Board meetings are bi-monthly (if Directors don't reschedule @ last minute-chronic problem). Are you saying EXEC session (near the end of March 2024) is the next time Board can ask attorney to create a letter from the Board? Will the letter FROM THE BOARD have attorney letter-head on it, looking like it came from attorney, not the BOD?
It takes more than an incompetent PMC, Rogue Board, unusual HOA issues, and intimidation to take the wind out of my sails.

I went to a seminar in 2021. Attorney stated a single incident can be harassment under Fair Housing law. It creates a hostile environment.

Remember, Jackie, that you may call an executive session with only 2-days notice to owners. Because you'll be discussing particular owners in a matter of Owner Discipline, and trying to get the Board to let you consult with your HOA attorney, Ex, Sess. is just fine.

If your attorney's contract with you gives the president the authority to consult with the attorney, just go ahead and DO IT. I do think you mention the PM was going to consult with the attorney, yet you don't have much confidence in them. In that case you must be present with the PM consult with the attorney. It's too easy for certain PM's to misunderstand attorneys.

Thanks Kerry. This issue caught me unprepared at our open session. I am Sec/Treasurer and our regs don't authorize a specific Director to connect with attorney; since my return to the Board ('22) it's rarely been needed. We are on our third PM (same PMC) in a year and the current one (x 5 months) seems competent and up to date. She responded at the end of very emotional testimony in open session that she would "talk to our attorney." Today I've followed ElleN's suggestion and asked Board + PM to set an Emergency meeting to discuss this and have attorney write a letter. Let's see what she suggests? I will return here when more info is available.

Dean. The HOA is only getting reimbursed. Who gets the fines? Not the HOA. That goes to the court system. The HOA is allowed restitution not punitive money.

Plus how much are the fines and for what? Who sets the amount? Keep in mind the fines are court ordered not HOA.

Tim, you are a breath of fresh air. Thank you for your patience, clarity and numerous efforts to educate all. This site is lucky to have you, ElleN, and a few others that provide us with unbiased info.

Call the police. This is not anything the board should try to mediate, to be sure, watch a few episodes of DATELINE!!!. Neighbors who are harassed need to call 911.

In California, the only fines/civil penalties issued are against the association, not the homeowner/member. There is no provision for a court to impose a civil penalty on a member. There are many provisions that allow a fine/civil penalty to be imposed against the association. When those fines/civil penalties are imposed by the court, they are payable to the plaintiff not to the court.

An omission in the governing documents doesn't absolve the association from following its legal obligations. For example, our Declaration states the board can choose to obtain fidelity insurance but California law now requires the board to obtain fidelity insurance. So the board has automatic authority from the law itself to obtain fidelity insurance. Same with Fair Housing laws. The law itself gives a board authority - and requires it - to investigate these complaints.