Tuesday, December 1, 2009

Victim or Victimizer? It's not so easy to distinguish in association land.

I am often asked if my law firm represents owners in disputes with their associations or only represents "the board". My first response is that we represent the association which is comprised of the individual owners but we must, of necessity, take direction from those owners' elected representatives. Imagine trying to serve 100+ individual masters and the resulting legal fees!

My second response is that yes, we represent owners in disputes depending, naturally, on the validity of the owner's complaint. I will never forget the time I met with a couple who came to my office to discuss the wife's need for a "prescription pet". This couple was being fined on a daily basis for a dog they were keeping in their unit despite a longstanding no pet restriction in the community. The husband gently caressed his wife's arm while describing her depression and the fact that only their new Westhighland Terrier Sparky could alleviate.

The association was represented by a highly respected attorney. I looked over his correspondence to this couple and found nothing overtly disrespectful or incorrect but still felt there was room to negotiate to keep the dog in the home. I took the case and was ultimately successful in not only keeping Sparky in the unit but also having the association waive the accumulated fines. My clients' unit in their high-rise was on the ground floor and bordered the pool. As part of our settlement agreement, they were asked to not allow Sparky to use a small dish garden on their terrace as a litter box of sorts since the odor was problematic.

If you already guessed what came next, you've lived in an association for far too long already! I was contacted 4 weeks later by opposing counsel to say that my clients had not only breached the agreement by allowing Sparky to continue using the litter box but they had moved a new puppy into the unit as well. Apparently one dog alone was not enough to alleviate the depression notwithstanding the fact that the odor from Sparky and the new puppy crying was creating a new tier of depression amongst my now former clients' neighbors. In short, I had been had. It got me to thinking that determining who is the victim and who is the victimizer is not always as easy as it seems at first blush.

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