Since the conclusion of the 87th Texas Legislative Session, we have written several articles and hosted several webinars discussing the changes to 209 hearings. This month, we will also be hosting a webinar discussing the basics on conducting a hearing, but what happens when something goes wrong during the hearing? In this article, we will highlight the steps board members and/or managers should take when temperatures boil over during both the in-person and virtual 209 hearing.
While the 209 hearing focuses on deed restriction violations, the same techniques discussed in this article would apply to ACC hearings as well. Through the 209 hearing process, both the association and the homeowner have the opportunity to present their side of the matter. Sometimes the hearing can lead to disagreements.
If that disagreement leads to the homeowner becoming belligerent, the board members and manager should take special caution in their next steps. For in-person hearings, the board members and manager should:
- Be reasonable and sympathetic to the homeowner’s questions, concerns and needs. By being reasonable and sympathetic, the Board and manager can calm the situation and allow the meeting to progress.
- In some situations, use legal counsel as a mediator in an attempt to defuse the situation and allow cooler heads to prevail.
- Be prepared to conclude the meeting if the hearing gets to the point where cooler heads cannot prevail and the homeowner remains belligerent.
In addition to the bullet points above, for virtual hearings, the board members and manager should:
- Use the mute function, if necessary. This feature of virtual meetings can allow for time to calm the situation while the Board and manager conduct the business of the hearing.
In certain situations, it is not the homeowners who becomes belligerent, but their guest(s) they have invited to offer a supporting position for their opinion in the hearing. In these situations, during in-person hearings, the Board and manager should:
- Advise the guest they are interrupting the conduction of the hearing and warn the guest they may be asked to leave.
- Ask the guest to leave the meeting if the guest remains belligerent.
If the hearing is a virtual hearing, the Board and manager should:
- Use the mute function, if necessary, and allow counsel to warn the guest they are interrupting the conduction of the hearing and may be removed from the hearing if it continues.
- Remove guests to the virtual waiting room if they remain belligerent.
Finally, in rare cases, it may not be the homeowner or homeowner’s guest whose temperature boils over, but a board member’s. In these situations, during in-person meetings, the other board members and manager should:
- Consider allowing legal counsel to take control of the hearing (if counsel is present).
- Pause the hearing to convene with the board away from the homeowner.
- Ask the board member to leave the hearing if the board member continues to interrupt proceedings.
- If the board member is removed and there is no longer a quorum of the Board, the meeting should be rescheduled for another date and time.
If this situation arises during a virtual hearing, the other board members and manager should:
- Consider allowing legal counsel to take control of the hearing (if counsel is present).
- Use the mute button to turn the board member’s microphone off and allow the board member time to calm down.
- Temporarily move the homeowner to the waiting room to convene with the Board.
- Remove the board member from the hearing if the board member continues to interrupt proceedings.
- If the board member is removed and there is no longer a quorum of the Board, the meeting should be rescheduled for another date and time.
209 hearings are normally conducted in a professional manner by both the homeowner and the association, but in rare situations the temperatures will boil over and one of the scenarios discussed will occur. If communication between the association and homeowner has been tense before the hearing and the board members and/or manager feel temperatures will boil over, the association’s legal counsel should be invited to the hearing to serve in the role of mediator between the two parties throughout the hearing.
