Words of Conveyance

Standing to Sue While Sitting on the Board

Standing is a party’s right to make a legal claim in Court. When the judge comes out to sit on the bench, she will read the cases and the parties or their attorneys come forward as called. “Standing” is the right to seek a legal remedy as shown by the facts alleged. Judges ordinarily decide questions of standing without ruling on the merits of the case. That said, a party dismissed for lack of standing cannot win. Standing just means that the case can proceed.

“Standing” has been in the news lately. There was a federal court complaint filed a monkey, Naruto, who in 2011 took a selfie with a camera and later sued David Slater, the owner of the camera for copyright infringement. The monkey and photographer litigated over whether the nonhuman primate has standing to sue under the U.S. Copyright Act. The notoriety of the suit increased the popularity of the photograph, raising the stakes in the case. The case settled this month, so we may never know whether a monkey can have standing. (I am doubtful because monkeys do not have upright posture. They walk on their feet and the knuckles of their hands and do not “stand” like we do.) In most cases, the question of standing is not controversial. If someone is party to a contract, they ordinarily have standing to sue under that contract. If someone runs into my mailbox with their car, I have standing against them because they damaged my property.

The question is not always so clear. For example, in community associations, the declaration of covenants defines legal relationships among the board and owners. If an owner feels that that their rights have been infringed by the actions of others in their community, who do they have standing to sue? There are numerous possibilities:

The HOA as a corporate entity
Individual officers or directors
An architectural review committee
Individual neighbors
Local land use officials
The developer or declarant
This is relevant to whether the owner actually has a case. Because of filing deadlines, expenses and headaches, owners need to avoid “going ape” on the wrong party. If the HOA is not an issue, then the owner would have to look at another theory such as trespass, nuisance, negligence or other type of right that may exist outside of community associations law. When the dispute involves a right or duty imposed by the governing documents of an HOA or powers of the board, then the answer will be found in interpretation of the covenants and other governing documents. The answer may not be apparent from the four corners of the HOA covenants. Owners have rights, duties and potential remedies that exist under statute or common law that may be implied by, but not specifically referenced in, the association documents.

The Court of Appeals of the District of Columbia considered the doctrine of standing in HOA matters earlier this year. Wilfred Welsh owned a townhouse in Washington, D.C. He was a Director and Secretary of the Chaplin Woods Homeowners Association. Welsh was unhappy because Beverly McNeil and Alvin Elliott rented their townhouse to Oxford House. Oxford House organized a small group home for women recovering from alcoholism and substance abuse. Welsh pointed to the fact that persons living in this townhouse were not party to the Oxford House lease. Welsh contended that the Oxford House lease was not approved by the board. A board majority did not share his views so he filed a lawsuit against McNeil and Elliot in his own name. Welsh did not name Chaplin Woods as a party. Chaplin Woods made no effort to formally intervene in the case.

McNeil and Elliot filed a counterclaim against Welsh, asserting that he violated the Fair Housing Act and the D.C. Human Rights Act by his opposition to their request for an accommodation for their tenants. They said that as Secretary, he delayed and obstructed their request for an accommodation by not transmitting Oxford.