Using Discretion When Deciding When to Act

Mark Speigler, one of the partners at the first firm I worked at, told me that a lot of the advice he gave his clients was not strictly legal, but business advice. I remembered that because to me it represented the difference between a competent attorney and an exceptional attorney. A competent attorney tells you what you are legally authorized to do, an exceptional attorney provides that plus a little more.

In community association law, identifying an association's legal authority is only part of the process. Just because the association has the authority, does not mean it has to use it. Sometimes it makes sense to make a document available to an owner even if you aren't legally required to do so. If the request has a legitimate purpose and it's release would not harm the association or violate any laws or important policies, the board should consider approving the request.

Similarly, just because the association has the power to enforce a violation, does not mean that it should. Sometimes, an alleged violation is just a dispute between two neighbors. The board should consult with its attorney and consider the impact on the association and residents before acting. These types of disputes often have each neighbor pointing their finger at the other. I sometimes have trouble deciding which one of my kids is telling the truth when they're saying that the other one started it. It's even harder when a Board is dealing with bickering neighbors. Even if you can tell which neighbor might be at fault, the Association is not normally a substitute for the police or the court system. If the dispute does not affect anyone else, it may be more appropriate for the two neighbors to resolve the dispute themselves. That is why Hawaii condominium law permits owners to enforce the governing documents and house rules in appropriate cases. One area that the association may wish to be careful about is where there is an allegation of discrimination. I'll explain why in a future article.