Bar News - October 21, 2015
Alternative Dispute Resolution: Mediation Among Neighbors: Solving Condominium Disputes
By: Kat Marquis
Condominium living, like most things in life, has its pluses and minuses. Occasional conflict is a natural byproduct of living very close to one another.
Mediation is an effective form of alternative dispute resolution (ADR) for condo-based disagreements because it preserves relationships. It improves communication and lessens future conflict.
As a litigator of complex and contentious condominium cases, I have represented condominium associations in costly disputes that go through trial and appeal, only to have a money judgment discharged by a bankruptcy filing.
ADR offers the opportunity to find creative solutions in straightforward disputes among neighbors. I recall an association that obtained a judgment against a unit owner for unpaid common expenses. The unit owner did not have the funds to pay, but through mediation, a deal was negotiated wherein the unit owner agreed to pay off his debt by bartering his painting services to paint the interior foyer and halls of the common area of the association building, which was desperately needed. The unit owner also agreed to assign his ancillary underground parking space (which he didn’t use) to the association – this had value because the association used it to store its outdoor equipment. Instead of trying to get money from a unit owner who had none, the association and unit owner both benefitted from an alternative solution.
This definitely beats the alternative. I recall a case in which I was representing an association that sued a unit owner who refused to remove her chihuahua, Mr. Jiggles (the name has been changed to protect the identity of the ferocious) from her unit, despite the fact that she knew when she bought her unit that pets were prohibited.
The association successfully obtained a declaratory judgment – including attorney’s fees and costs to be paid to the association – from the trial court, ordering that the dog be removed. The unit owner appealed the case to the New Hampshire Supreme Court, which upheld the decision of the trial court and awarded further attorney’s fees and costs incurred at the appellate level. Shortly after the money judgment became final, however, the unit owner filed for bankruptcy – a big victory with no reward. The victor was indistinguishable from the vanquished.
There are condo cases that have been litigated literally for years over something that started out as a dispute over a parking fine as small as $75. A unit owner refuses to pay and an association tries to collect. The litigation led to all-out war, with the unit owner filing counterclaims, discovery motions, motions for continuances, and more. Lengthy and detailed testimony at evidentiary hearings was taken. Different judges heard and presided over the case at differing stages of the litigation. Different property management companies serviced the association involved, and several board members came and went, further complicating the litigation. Mediation of this dispute could have resulted in a much different outcome.
Parking disputes involving deeded parking spaces to unit owners can be hard-fought. Where the plot plans show delineated lines outlining individual parking spots, but no actual lines mark the parking lot itself, unit owners can ready for battle. When the gravel parking spaces are indistinguishable, even though the plot plans indicate otherwise, unit owners who lay claim to ownership of a space cannot fit into “their spot” if another vehicle is not properly aligned. A dispute like this can effectively be resolved by a mediator with patience, party participation and a good tape measure.
As attorneys, we all agree that certain issues that arise in condominium living cannot be compromised. For example, when a pit bull named Daisy is urinating on the deck of her owner, dripping down onto the hair of a unit owner sitting on her deck directly below and later that day, Daisy runs amuck with no leash, growling at condo unit owners; immediate legal action to protect the safety and welfare of the community association must be taken.
Generally speaking, however, in community associations, saber rattling and threatened lawsuits are not always the answer. When the tension of litigation is defused and the parties, sit down, neighbor to neighbor, with counsel and mediator, there is opportunity to improve communication, lessen future conflict and achieve a durable resolution. In my experience, when you put down your sword, you find that your hand is open to shake hands with your neighbor. After all, “The Supreme Art of War is to subdue the enemy without fighting.” Sun Tzu.
Kathleen Marquis is an attorney in Manchester who concentrates her practice on condominium law. She is also a Superior Court Rule 32 Mediator and operates Marquis Mediation. Kat is a member of the ADR section of the NHBA. She can be reached for mediation by email or at (740) 815-8687.