Being a board member of a condominium association or homeowners association can sometimes mean dealing with frustrated or angry co-owners. Board members may be the face of unpopular decisions involving assessments, rule enforcement, maintenance, architectural requests, or other association business. Most disagreements remain part of the ordinary operation of the association. Occasionally, however, a dispute becomes personal, and a homeowner or resident may seek a Personal Protection Order (PPO) against an individual Board member.
A PPO can be particularly concerning when the allegations arise from communications or actions the Board member believes were taken as part of their association responsibilities. Understanding when a nondomestic PPO may be issued, what conduct can support one, and what a Board member should do after receiving one can help prevent an already difficult dispute from becoming more serious.
What Is a Nondomestic Personal Protection Order (PPO) Under Michigan Law?
For disputes between association members and board members, the relevant type of PPO will generally be a nondomestic PPO under MCL 600.2950a. Unlike a domestic PPO, a nondomestic PPO does not require the parties to have a domestic relationship. Instead, MCL 600.2950a allows an individual to petition the family division of the circuit court for an order restraining another person from engaging in conduct prohibited by Michigan’s stalking statutes.
A nondomestic PPO is therefore not simply a remedy for an unpleasant relationship or contentious association dispute. The petition must allege facts that satisfy the statutory requirements for stalking, aggravated stalking, or cyberstalking.
Under Michigan’s stalking statute, MCL 750.411h, stalking generally requires a willful course of conduct involving repeated or continuing harassment that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the alleged victim to experience those feelings. A “course of conduct” requires two or more separate, noncontinuous acts evidencing a continuity of purpose.
Accordingly, a homeowner cannot generally obtain a nondomestic PPO simply because a board member was rude, unfair, unreasonable, or disagreed with the homeowner’s position on an association matter. The alleged conduct must meet the statutory requirements.
Can Enforcing HOA Rules Count as Stalking or Harassment?
The statutory requirements can be particularly important in the condominium and homeowners association context because board members routinely communicate with co-owners. A board member may need to send violation notices, respond to complaints, address assessments, communicate about maintenance or repairs, enforce the governing documents, or respond to repeated homeowner requests. However, repeated communications do not automatically constitute stalking. The purpose, content, frequency, context, and manner of the communications all matter. Michigan’s stalking statutes also distinguish harassment from conduct serving a legitimate purpose.
For example, a board member may have to send multiple violation notices because a homeowner continues to violate the governing documents. A director may have to respond repeatedly to complaints from the same homeowner. The board may deny the same request more than once because the governing documents do not permit it. Those circumstances, standing alone, do not necessarily constitute stalking.
This does not mean that a board member has immunity simply because the interaction involves association business. A director who uses association business as a pretext for personal harassment, threats, or stalking may still face individual consequences. The question is whether the alleged conduct satisfies the statutory requirements.
For this reason, board members should keep communications professional, factual, and focused on legitimate association business. Maintaining clear records of the reason for communications and the actions taken by the Board can also be important if a dispute later results in a PPO petition.
A Michigan PPO Can Be Issued Without a Hearing
Another important consideration is that a nondomestic PPO can be issued ex parte, meaning that the court can issue the order without first hearing from the respondent. Under MCL 600.2950a, the court may issue an ex parte order when the statutory requirements are satisfied, and the circumstances warrant issuing the order without prior notice and a hearing.
As a result, a board member may learn about a PPO only after it has already been entered. The entry of an ex parte PPO does not necessarily mean that the court has determined that the allegations are true. The respondent has a procedure for challenging the order. However, the board member must comply with the PPO unless and until the court modifies or terminates it. The fact that the director believes the allegations are false, exaggerated, or retaliatory does not permit the director to disregard the order.
What Should a Board Member Do After Receiving a PPO?
A board member who receives an ex parte PPO should act promptly. In particular, the board member should:
- Read the PPO carefully. Determine exactly what conduct is prohibited. The order may restrict direct contact, electronic communications, proximity to the petitioner, or other specified conduct.
- Determine when the order became effective and when the board member received notice. PPOs can be immediately enforceable.
- Do not contact the petitioner to dispute the allegations. Attempting to explain or resolve the situation directly could itself violate the order.
- Contact counsel promptly. Counsel can review the petition and order, evaluate the allegations, and determine whether a motion to modify or terminate the PPO should be filed.
- Comply with the order while it is in effect. Violating a PPO can result in arrest and criminal contempt proceedings.
Michigan court rules generally provide that a respondent may file a motion to modify or terminate an ex parte PPO and request a hearing within 14 days after being served with or receiving actual notice. Because that deadline is short and the consequences of violating a PPO can be significant, a board member should consult counsel promptly.
What Does a PPO Against a Board Member Mean for the HOA?
A PPO is directed at the individual respondent. The fact that the respondent is a board member does not, by itself, make the condominium or homeowners association responsible for the alleged conduct. The PPO can nevertheless create practical problems for the association. For example, the petitioner may attend a board meeting at which the director is also present. The association may also need to communicate with the petitioner about assessments, violations, maintenance, or other association business.
The board should not attempt to interpret or work around the PPO on its own. Depending on the terms of the order, the association may need to route communications through the management company, another director, or association counsel. The association also should not use another person to communicate with the petitioner as a means of circumventing restrictions imposed on the director. The goal should be to comply with the PPO while continuing to meet the association’s obligations to the co-owner and the community.
Should the Association Pay the Board Member’s Legal Fees?
A PPO may also raise the question of whether the association should pay the board member’s attorney fees or other expenses. Whether the association may or must indemnify a director is a separate question from whether the PPO is valid.
The answer will depend on the association’s governing documents, applicable Michigan law, insurance coverage, the capacity in which the director was acting, and the circumstances underlying the allegations. The board should consult association counsel before agreeing to pay, or refusing to pay, the director’s legal expenses.
Key Takeaways for Michigan Condo and HOA Boards
A nondomestic PPO against a condominium or homeowners association board member can turn an ordinary association dispute into a serious legal matter. But a disagreement between a homeowner and a director does not automatically constitute stalking or harassment. The allegations must satisfy the statutory requirements for a nondomestic PPO under MCL 600.2950a.
Board members and associations can reduce the risk of escalation by keeping communications professional, consistently enforcing the governing documents, documenting Board decisions and communications, and avoiding personal disputes with homeowners.
If a board member receives a PPO, the order should be taken seriously, even if the allegations appear unfounded. The board member should comply with the order, avoid direct contact with the petitioner, and promptly consult legal counsel regarding the appropriate response. The association should likewise consult legal counsel about how to continue conducting association business without creating a violation of the order or exposing the association to unnecessary risk. By responding promptly and carefully, condominium and homeowners associations can protect their Board members while continuing to carry out the association’s responsibilities.
Need Assistance Responding to and Defending Against a PPO?
If a co-owner has sought a PPO against one of your condominium association’s board members, experienced legal counsel can evaluate the allegations, explain the available options, and defend against claims of harassment or stalking. Prompt legal guidance can also help the association comply with the order while continuing to conduct its business and protect the interests of the community.
