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Q&A: Board Members Behaving Madly

Q. What can be done when the president of the condo board verbally harasses the building’s superintendent?

                               —Appalled Tenant

A. “In my experience,” says attorney Mark Rosenbaum of Chicago-based firm Fischel Kahn, “very few condominium instruments (namely the declaration and bylaws) directly address the relationship between unit owners and the staff/employees of the association. All the more reason for an association to have rules and regulations about abusive conduct.

“In my opinion, an association should have a rule in place that obligates all unit owners to be civil to each other, other occupants, all staff, and all guests.  The rule should also allow non-owners to file complaints against other persons (owners/occupants/staff/invitees) who are verbally abusive. And the board should issue fines as appropriate. If the abuse is physical, that is a matter for the police.

“That being said, most declarations have a provision similar to the following: ‘No noxious or offensive activity shall be carried on in any unit or in the common elements, nor shall anything be done therein, either willfully or negligently, which may be or become an annoyance or a nuisance to the other unit owners or occupants.’

“Note that the president’s actions could be argued to be the carrying on of an offensive activity. But it is less likely that the annoyance or nuisance language applies because the conduct is not directed to another unit owner or occupant.   Still, a unit owner or occupant who witnesses the conduct could file a complaint vs. the president on the grounds that he/she was/were annoyed by what the president said. If such a complaint is filed, since it could result in a fine, the association’s fining procedures would be triggered. And the president would have to recuse himself from the process.

“A major impact of the president being verbally abusive could be that it casts some doubt as to whether that person should be president. Since the president of an association ordinarily serves in that office at the pleasure of the board, it is within the power of any board member to make a motion to the board to remove that person as president as a result of his/her conduct. The board cannot remove the president as a director, however. That power is with the owners. A motion to the board to remove the president from that office need not be made after a hearing. The requirement of a hearing only applies by law to the issuance of fines. Still, the person making the motion may have to further explain why the motion is being made, and the board may want to hold hearings anyway, to determine if the allegations of verbal abuse have any basis in fact.

“Of course, if a board member makes such a motion, that may result in the president being less than happy with the board member and may affect that board member’s ability to get things done in the association, win or lose.”    

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