Cease and Desist Letters: A Double-Edged Sword for Community Associations
In the world of community associations, whether Homeowners’ Association, Condominiums, or Co-Ops maintaining order and enforcing rules is essential. When a violation occurs, boards often consider issuing a cease-and-desist letter via its legal counsel as a formal warning to stop the offending behavior. While these letters can be powerful tools, and in some instances are necessary, they also carry risks that may escalate tensions rather than resolve them.
Let’s unpack the benefits and pitfalls of cease-and-desist letters and the delicate balance association boards must consider when choosing this legal route.
Benefits of Issuing a Cease-and-Desist Letter:
- Formal Documentation of Violations
- A cease-and-desist letter creates a paper trail that shows the association took steps to address the issue before pursuing a lawsuit.
- It can serve as evidence of due diligence if the matter escalates to court, or should a claim be brought against the Association.
- Clear Communication
- The letter clearly spells out the specific behavior that violates the governing documents and demands cessation.
- This clarity can sometimes resolve misunderstandings or unintentional infractions.
- Deterrence
- The legal tone and potential consequences may prompt compliance from residents who might otherwise ignore informal warnings.
- It is common that individuals take a legal letter more seriously than a run-of-the-mill violation letter sent by the Association or its management company.
- Legal Leverage
- The letter signals that the Association is serious and prepared to escalate, if necessary, which may encourage voluntary resolution.
Pitfalls and Unintended Consequences
- Escalation of Conflict
- A cease-and-desist letter can feel aggressive or threatening, especially if the recipient was unaware of the violation.
- Instead of compliance, it may provoke defensiveness, retaliation, and allegations of impropriety on the part of the Association.
- Reports of incidents that lead to cease-and-desist letters are not anonymous and become part of the Association’s official records and the violator may target the person who reported the violation.
- Public Relations Fallout and Misinformation
- Many Associations have social media platforms (text groups, WhatsApp Chats, Facebook Pages, Instagram Accounts, X accounts, etc.) and as the letter would be an official record of the Association if the issue becomes public—through social media or neighborhood gossip—it can damage the Association’s reputation and foster distrust among residents.
- Depending on how the violation is presented, it may also, incur liability to the Association, if the reporting party turns out to be less than credible.
- Legal Missteps
- If the letter is poorly worded or lacks legal support and grounding, it could expose the association to liability or weaken its position.
- Associations should always consult legal counsel before sending one.
- If an Association is going to have its legal counsel send the cease-and-desist letter it is important that you provide them with as much information as possible, including copies of the violation reports, any police reports, photos or videos of the incident(s)/violation(s).
- Fueling the Fire
- In emotionally charged disputes, a cease-and-desist letter may intensify the drama rather than extinguish it.
- Some individuals may interpret it as a challenge, diffing in deeper or rallying others to their cause.
- Moreover, depending on the situation, the violating party may not be of sound mind which may make other avenues or get the authorities involved to assist with the situation.
When Cease-and-Desist Letters Add Fuel to the Fire
Imagine a resident who has been acting erratically, appearing under-the-influence, having loud parties and generally disrupting the surrounding neighbors. After a few verbal warnings, the Board sends a cease-and-desist letter. Instead of quieting down the resident starts a campaign of terror against the surrounding neighbors making it more uncomfortable to reside next to them.
Strategic Alternatives to Consider
Before reaching out to legal, the Association might consider:
- Decide whether this is a “neighborly dispute,” which should be handed between the neighbors without the association’s involvement, or if this is an issue of “community concern,” where the community is impacted—which would provide grounds for the association to get involved. The association should avoid getting involved in neighborly disputes.
- Evaluate the violation and the nature of the person causing the violation, this may be a situation that is better handled with the assistance of law enforcement.
- Informal meetings to discuss the concerns fact-to-fact, depending on the violations.
- Friendly written reminders that cite specific rules and restrictions without legal threats.
- Community education campaigns to reinforce expectations and build goodwill in the community.
- If a tenant resides in the property, there is a chance that the owner is completely unaware of the violations, therefore, reaching out to the owner may resolve the violations expeditiously.
- It is important that the association maintain owners’ information.
- It is also important to ensure that the association is treating all violating residents similarly, if it is going to consider the violation one that warrants a cease-and-desist letter, it must treat any other resident committing the same violation similarly.
Final Thoughts
Cease-and-desist letters are not inherently bad, they’re tools. But like any tool, they must be used wisely. Associations should weigh the potential benefits against the risks and always seek legal guidance to ensure the letter is appropriate, accurate, and strategically sound and in most situations, it would be best practice for the cease-and-desist letter to come from legal counsel.
Sometimes, the best way to stop a fire isn’t to throw more fuel at it—but to cool things down with empathy, clarity, education, and collaboration, particularly if the Association does not have a history of being stringent with rule enforcement and is now seeking to be more diligent in its enforcement.
Author: Tara N. Mulrey, Esq.
Partner at Straley Otto Law specializing in Community Association Law