If you have been involved as a manager or board member of a community association for any significant period of time-, you have likely come across a difficult owner or tenant who insists on using ineffective communication strategies. Maybe they send you daily or hourly emails demanding information, or post these demands to social media. Perhaps they telephone excessively, wanting to discuss board positions outside of meetings. In some circumstances, they may even contact association vendors directly, and demand action or information to which they have no right. In a perfect world you would respond to legitimate requests for information or action, and once that was done, would hit the “pause” button on the other person’s actions. But, we all know, it is never that simple, and thus the cease and desist letter.
Practically speaking, a cease and desist letter is simply a letter written by one party demanding that another party stop some action. In almost all circumstances, the complained of actions are allegedly harassing or illegal in some way. The intent is to let the recipient know you mean business, and let them know that some further action will be taken if they fail to comply with the demands of the letter. A good cease and desist letter should not be motivated by personal feeling or written in the heat of passion. Instead, it should clearly define the objectionable behavior, state why the behavior violates some law or other enforceable obligation, and what will occur if the misbehavior continues. I personally refuse to send “nastygrams,” or letters designed just to threaten the recipient into submission. This tends to further anger the recipient, and moves the parties further away from a harmonious resolution.
One scenario that comes up frequently is the owner who gets on social media and alleges that the entire Board is composed of idiots who have stolen Association money and are involved in a conspiracy to deprive the other owners of their legal rights. The board members, upset or even concerned about how this may impact their jobs or families, call the association attorney and demand a letter telling the complaining party stop talking about them on social media. The statements likely meet the definition of defamation, in that they accused the board members of crimes and subjected them to public ridicule and contempt. However, the analysis does not stop here. Does the Association have an interest in protecting the private reputations of its Board members? The Board is not being defamed as such- only the individuals. Should the Association use its funds and attorney to address this? And, will sending a letter really curtail the behavior? In my experience, ignoring this type of behavior, even when it is odious, is usually the right approach. Cease and desist letters are frequently met with a response, and then a battle of letters ensues where no one is likely to concede their cause.
There are situations where a cease and desist letter must be sent. I have sent these letters to owners who are verbally and even physically interfering with association contractors and preventing them from doing their jobs. A cease and desist letter is appropriate here to advise the bad actor that if they continue, legal action will be pursued for tortuous interference with contract and damages. In many other situations, an unthreatening but self-serving letter is the best option to document negative behavior and request improvement. At best, it will end the negative behavior; at worst, it shows that the association made some reasonable efforts to address the situation.
The attorneys in Black, Slaughter & Black, P.A.’s community association practice group in Charlotte and Greensboro have dealt with virtually every type of homeowner issue, and are happy to discuss effective strategies with you for dealing with difficult owners.