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CCOC Decision Summary

#11-10, Berlack v. Edson Park Condominium (October 25, 2010) (Panel: Dymowski, Brandes, Wilson) 

Berlack filed a complaint against Edson Park Condominium to challenge a finding by the board that she had violated the condominium's rules by expanding her patio without permission and into the common areas.  The Commission accepted jurisdiction of the dispute, and it was set for a hearing.  Shortly before the hearing, however, Berlack notified the panel that she wished to withdraw her complaint and asked the panel to dismiss the case. 

Edson Park objected to the motion to dismiss.  It argued that important issues were still unresolved, that it had spent money and time preparing for the hearing, that Berlack had not conceded or admitted anything, and that violation persisted.

The hearing panel held, first of all, that once the responding party answers a complaint, the complaining party cannot withdraw the complaint without the responding party's consent or the permission of either the Commission or its appointed hearing panel.

The panel then overruled the objection and granted the motion to dismiss because it concluded that equity favored dismissal.  Once a complaint is dismissed, the automatic stay imposed after the filing of a complaint expires, and Edson Park would then be free to enforce the decision of its board that Berlack was in violation.  Furthermore, if Edson Park wished to file its own complaint on the matter, it could do so.  Also, to protect the association from any further waste of time, the panel ordered that if Edson Park did file a complaint with the Commission either party could waive mediation without penalty and the staff would refer the complaint to the Commission for a hearing on a priority basis.

[Staff comment:  To avoid an outcome like this, a responding party should consider filing its own complaint against the complainant, and asking that the two cases be consolidated.  That way, a responding party can still pursue its own request for relief even if the first complaint is withdrawn or otherwise dismissed for some reason.]

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