A violation of the condo bylaws occurs. The first question from the board and management is: how do we enforce it? That typically encompasses two issues. The first is: what remedies and tools do we have available to us? The second is: what procedure do we have to follow?
The remedies can include fines, injunctions, declaratory relief, and more. The procedures are typically dictated in two places: the relevant statutory framework, and the Bylaws themselves. Some jurisdictions, including Maryland, have a very robust and stringent procedure for how to implement enforcement procedures. Others, like the District of Columbia, leave the interpretation to those with boots on the ground. The DC Condo Act provides:
(a) Except to the extent expressly prohibited by the condominium instruments, and subject to any restrictions and limitations specified herein, the unit owners’ association shall have the:
(11) Power to impose a charge for late payment of an assessment and, after notice and an opportunity to be heard, levy a reasonable fine for violation of the condominium instruments or rules and regulations of the unit owners’ association;
DC Code § 42–1903.08
“After notice and an opportunity to be heard” is pretty vague, especially compared with the rigorous requirements of its Maryland analogue. As I often point out, this leaves DC condo enforcement to seem somewhat like the wild west, with very little statutory guidance to answer the question of “is this legal?”
Case Law Provides Guidance
Thankfully then, enter the recent case of Rayner v. Yale Steam Laundry Condominium, decided by the DC Court of Appeals in February 2023. Recall from our “Is this Legal” post that before we have to rely solely on opinion and projection as to what the law is, we look first to statutory language, and then to binding case law. The DC Court of Appeals is the highest court in the jurisdiction, and its decisions are binding on all lower courts within the District. So we should pay attention here.
The case has to do with a dog bite (or two), but we are looking at it mostly for the procedure used, rather than the substance of the alleged violation. Given that, here is a brief timeline of the relevant enforcement events:
December 26, 2019: first dog incident occurs.
December 31, 2019: Rayner sends Association a statement about the December 26 incident, and receives written notice of First Hearing set for February 4, 2020.
January 24, 2020: second dog incident occurs.
January 27, 2020: Association emails Raynor about January 24 incident. Rayner emails Association explaining that he cannot attend the First Hearing due to a death in his family.
February 4, 2020: First Hearing does not occur.
February 5, 2020: Rayner asks to stay First Hearing and asks the Association “why any community proceeding is necessary.” Association responded with its responsibility to the community and states a hearing “gives you due process rights to try to explain why there was no violation.”
February 7, 2020: Association sends Rayner notice that First Hearing will be on February 18.
February 18, 2020: in the morning, Rayner emails Association alleging procedural defects in the notice of First Hearing and asking the Association to delay his hearing.
February 18, 2020: First Hearing occurs. Rayner does not attend.
March 3, 2020: Association issues decision fining Rayner $100 for the January 24 incident, declaring his dogs a nuisance, and calling for their removal from the condominium. However, the decision stays the dogs’ removal as long as they wear muzzles in common areas.
April/May 2020: Unsuccessful settlement offers by Raynor.
Early July 2020: Association sends Rayner written notice of Second Hearing to be held on August 4, 2020. This notice listed removal of one or both dogs as a possible sanction; included O’Connor’s complaints from both incidents; and explained that the hearing would address the incidents, including Rayner’s “ability/efforts to properly keep your dogs under control generally,” whether the dogs “constitute ‘orderly domestic pets’” under the Association’s bylaws, and whether the dogs “constitute a nuisance” under those bylaws and other relevant rules.
July 21, 2020: Rayner asks Association to continue Second Hearing, citing alleged violations of the Enforcement Procedures. Association reschedules the Second Hearing for September 15, 2020 and provided Rayner with notice of this new date on September 1. Rayner contends that, before the Association chose September 15, he told the Association that he would be busy on September 15.
September 10, 2020: Rayner asks Association to delay the Second Hearing for “good cause.” Association declines.
September 15, 2020: Second Hearing occurs. Rayner does not attend.
September 21, 2020: Rayner files suit against the Association in Superior Court.
September 30, 2020: Association issues its decision from Second Hearing explaining how the Association “agreed to re-start the process” after the first hearing, and stating that this second decision entirely supersedes, replaces, and overrides the First Hearing decision.
Procedural Status
After all of that, the owner filed a lawsuit against the association alleging (among other things) that it failed to comply with its own enforcement procedures – that it did not provide him “due process” before imposing the decision set forth at the Second Hearing. The association filed a motion to dismiss, arguing that all of the facts alleged above did not amount to a violation of due process. The trial court (Superior Court) agreed, and dismissed the case. Here we take a look at what the Court of Appeals (the one whose decision is binding on future actions in DC Superior Court) thought of that decision.
Due Process
The point of these proceedings, and the point of the statute requiring “notice and an opportunity to be heard,” is to afford the alleged violator with due process. Not to get too far off track here, but the concept of due process really begins in 1215 with the Magna Carta, which provided that the sovereign is not above the law and zzzz…….
Oh I’m sorry did you fall asleep? OK we’ll skip forward then.
In the US Constitution, the Due Process clause originally occurs in the Fifth Amendment, which states that no person shall be deprived of life, liberty, or property without due process of law. Unsurprisingly, especially where lawyers are involved, this little sentence has spawned volumes of discussion, litigation, legislation, and case law. And after all that, it still often comes down to a bit of “you know it when you see it.” After all, does the capital murder defendant on trial for his life get the same due process as a jaywalker? Obviously not! So we have to set some guidelines.
Due Process in Condominium Enforcement
Now, eagle-eyed readers will note that I cited the Magna Carta (an English relic) and the Fifth Amendment to the US Constitution (restricting what the federal government may or may not do). Neither of these is legally binding on a condominium board as it enforces its bylaws. So perhaps due process should be thrown out the window?
Incorrect. Instead, courts generally borrow the concept of due process in other arenas even where it is not required by the Fifth Amendment (or King John) to protect people from the similar evils that those original due process laws were created to prevent. Foreclosures are a great example. While there is no state action occurring there that would trigger constitutional due process, courts will borrow from that body of law and the concepts fleshed out therein to create minimum standards for what has to happen before the foreclosing party, a private entity, may take real property from someone else. Ditto evictions, and other similar areas of civil law.
Condominium enforcement is another such arena. May a condominium revoke certain privileges, impose fines, or restrain certain behaviors on condominium grounds (assuming its documents allow it)? Yes. May a condominium do those things in secret, without giving the owner any opportunity to hear the allegations against him and contest them? No!
This whole subsection may seem like a waste of space to you. Just get to the case already Brian! But, I respond, this is important background to assist in understanding the context. Too often I see parties (both boards and owners) who skip past these basics and get right to the minutiae of their own case, without orienting themselves within the law. Here, we are deciding specifically what “notice and opportunity to be heard” constitutes sufficient due process to impose a sanction.
Due Process in this Case
In our case, the sanction being imposed was $1,100 in fines, a requirement to provide proof of rabies vaccination licensing for the dogs, and a request to follow Animal Control’s recommendations of muzzling the dogs in common areas, communicating with passersby about the dogs, and preventing the dogs from jumping on people.
The Court of Appeals specifically noted that the condominium, however, neither declared the dogs a nuisance
nor ordered their removal. This is important context; you may recall from some of our prior discussions, it is important to read between the lines and see what the court is really saying, or what it did not say. Here it made a point to note that the challenged action was a seemingly reasonable amount in fines, a request for documentation, and some pleading requests to take safety measures. The court also specifically pointed out that the condominium was not mandating the removal of the dogs. Would the decision have been different – would a greater amount of due process have been required – if the dogs were being removed? Tough to say.
Remember, the trial court found in favor of the Association, stating that the actions they took provided the owner with sufficient due process to impose the fines they did. Quoting the trial court with approval, the Court of Appeals stated that the owner claimed he was not afforded due process – facts he did not establish here, because to the contrary (reflecting due process), the owner submitted a statement about the incident, received prior notice of both hearings and of their rescheduling at his request, received video footage to aid in his case, “and was notified of his right to be present and participate at both hearings.” Further, explained the court, the Association restarted the disciplinary process with its Second Hearing Notice, which “cured any alleged deficiencies” in due process in the first hearing.
The takeaway is that the Court of Appeals signed off on the above proceedings as sufficient to provide the owner with due process, and dismissed his suit to the contrary. What can future associations take away from this holding?
The Enforcement Procedures
Both the trial court and the Court of Appeals were very interested in the Enforcement Procedures that the association had in place at the time of this action. This once again emphasizes to associations: put your rules and policies in place before you need them. Legislate what you are going to do in the event of a certain situation; that way, the actions you take, when they comply with your procedures, are much more likely to be upheld by a court. Put another way, if the association had no Enforcement Procedures in place at the time that Mr. Raynor’s dogs acted out, and they had gone through these same steps, the result might have been different. Don’t decide on the fly; know in advance what the procedure will be.
Both courts were especially taken with two portions of the Enforcement Procedures: “The first provision the trial court relied on, Section II.B, specifies that “the Board may determine the specific manner in which the provisions of this Resolution are to be implemented, provided that reasonable due process is afforded.” The second, Section II.C, provides that “any inadvertent omission or failure to conduct any proceeding in exact conformity with this Resolution shall not invalidate the results of such proceeding, so long as a prudent and reasonable attempt has been made to ensure due process according to the general steps set forth in this resolution.” We agree with the trial court that these provisions gave the Association sufficient latitude to survive Rayner’s breach of contract claims, provided that the Association afforded Rayner due process. And we agree that Rayner received the process he was due.”
Remember our discussion of due process above? This association wisely put the concept right into their dispute resolution policy. They said: (1) procedure is not ultra-technical, as long as due process is afforded; (2) any minor missteps will not by themselves invalidate enforcement if due process was afforded; and (3) they may (but are not required to) reset the time and date of a hearing if a party shows good cause for non-attendance and provides alternative hearing times and dates.
This second one is intriguing, because I think there is a pretty reasonable argument out there against this mattering very much. That argument is: the board itself passed this policy! Can they really give themselves the benefit of the doubt in matters of procedure? Think about it. In a criminal case, the prosecutor or police can’t say: it is hereby our policy that as long as we try hard to comply with due process, our minor errors won’t invalidate our whole case. A judge or jury decides that! Here, the board acts as rule-maker, prosecutor, investigator, judge, and jury. Yet the court says that because their policy (which they wrote) gives them the benefit of the doubt, they get it.
The discretion to reset the hearing or not is also of note; trial courts are given a similar latitude, but case law generally provides that we have a policy in favor of deciding cases on their merits as opposed to by default, and to give defendants every opportunity to be heard if they are so inclined.
I think the result actually comes out right in the end. The association board is made up of lay people (volunteers with only cursory training) trying to sort through the red tape of protecting the most important investment many of the owners there will ever make. We should give them some latitude and let them enforce their own documents. But I find it at least somewhat amusing that the court puts so much emphasis on the paragraph from the board’s own policy where it says, basically, we get the benefit of the doubt on procedural minutiae.
Providing Notice and Opportunity to be Heard
While I opened my discussion by mentioning the statutory framework (it’s in a big block quote up there), the court really did not dig into what the Condo Act provision meant for this case. They were focused on the concept of “due process” as raised by the Enforcement Procedures. But I think the analysis stays pretty similar; both ideas drive at giving the accused owner some right to defend himself.
Now, here’s where we get to the fun part. You play condo lawyer for a minute. Your association client comes to you. They recite the entire timeline set out above (go ahead; go back up and read through it again). I will highlight the salient points. The client tells you: (1) The owner did not attend the first hearing we held due to a death in the family, which he told us seven days before the hearing; (2) The owner did not attend the second hearing we held. He told us before we scheduled that hearing that he was unavailable the date we picked, and asked us again five days before the hearing to reschedule it so he could attend; (3) We issued a ruling against this owner after the second hearing.
You’re on the billable clock. What do you tell this client? I’ll even make it multiple choice for you: (a) You’re good. Stand your ground. If he sues, he sues. You will definitely win. (b) You held two hearings, both of which you knew he couldn’t attend. Reschedule another one and do it again.
I’m well known as being not particularly risk-averse as lawyers go. If you want to take the practical route, I can probably get on board with that. But in this instance, in a pre-Raynor world, if you had come to me with this situation, I’m telling you it’s a no-brainer to go back and hold the hearing again. It’s just simple economics, frankly. It costs you almost nothing to go back and have a hearing where he attends, says what he wants you to hear, and then you issue whatever ruling you (probably) were going to issue to begin with. It takes this entire due process discussion out of the realm of possibility. Whereas if you go forward, there is a decent chance that a court overturns your hearing because you had a guy who wanted to attend, and it kind of seems like you railroaded him a little bit. You couldn’t have just asked him for a date when he was free?
When clients come to me and I send them back to re-take one or more steps in the enforcement procedure, this is why. You don’t want your entire case coming down to a toss-up question as to whether the process given was “due” in these circumstances. It could have easily gone the other way here, and the second lesson I would pull from this case is: don’t leave such easy arguments for a due process violation out there. Make sure to get the owner at the hearing if they want to attend; otherwise, you may see them at the Court of Appeals (three years after the initial hearing!).
Regardless, in this case the Court of Appeals did find that due process was given. And that is good info for future association boards (obviously it is also helpful to know for any owners who challenge enforcement actions). In attempting to provide due process to future violators, here are some guideposts the Court of Appeals found relevant: the Association made multiple prudent and reasonable attempts to ensure the process required. Raynor (1) had the opportunity to and did submit a statement about the incident, (2) received prior notice of both hearings, (3) received notice of when the hearings were rescheduled at his request, (4) requested and received video footage to aid in his case, and (5) was notified of his right to be present and participate at
both hearings.
What to Know
When enforcing condominium bylaws, three important rules to be gleaned from this case are:
— Adopt an enforcement policy before undertaking the actual enforcement
— Follow the enforcement policy
— Avoid questionable procedural situations; do the easy and obvious things it takes for proper enforcement
— Make demonstrable efforts to provide due process to the owner
If you do these things then your enforcement action has a much higher chance of being upheld by a DC Superior Court judge.