Statement of Policy Concerning the Exhaustion of Remedies  as a Precondition to Filing a Dispute with the Commission
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April 1, 2009

The Commission believes that many community associations ("associations") and their members may not understand the meaning of the statutory requirement of Section 10B-9 (b) of the Montgomery County Code that "A party must not file a dispute with the Commission until the party makes a good faith attempt to exhaust all procedures or remedies provided in the association documents."The purpose of this Policy Statement is to clarify for all parties how the Commission interprets and enforces this law.

1. The CCOC will not accept a dispute from an association unless the association has first followed all applicable procedures of its association documents governing the violation(s) alleged.If the association is a condominium association, it must also have complied with the requirements of Section 11-113 of the Maryland Condominium Act. At a minimum, the Commission expects every association to have done the following: 1) provided the other party written notice of the alleged violation(s) together with a reference to the section(s) of the association documents involved; 2) provided the party a reasonable time either to correct the alleged violation(s) or to request a hearing with the association's governing body; 3) provided the party a hearing with the governing body if requested; 4) provided the party a written notice of the governing body's decision after the hearing together with a statement that the party may appeal the decision to the Commission and that the association will take no action to enforce its decision for 14 days from the date of the notice; and 5) the complaint is signed by the president or vice-president of the board of directors.These procedures are in addition to, and do not replace, the written requirements of the association or of State law. [ [CU1] The association shall file a copy of any documents showing its compliance with its written standards, if any, and of this section together with its complaint.

2. The CCOC does not interpret the term "exhaustion of procedures or remedies" to mean that a association must first attempt to enforce its official decision against the member or resident before filing a complaint with the CCOC against that member or resident.

3. The CCOC will not accept a complaint from a member or resident against an association unless the Complainant has first followed any written procedures or remedies in the association documents governing resolution of that type of dispute.However, if the owner or resident has attempted to follow those procedures by providing written notice of the dispute to the association in the form, if any, prescribed in the association documents and the association has failed to resolve the dispute within 60 days, or has denied the relief requested by the owner or resident, then the Commission will consider the owner or resident as having satisfied the requirements of County Code Section 10B-9 (b) by exhausting all available association procedures or remedies.If the association has not adopted a written dispute resolution procedure that applies to the type of dispute the complainant wishes to present, the CCOC expects that the complainant will have given written notice to the board of directors of the dispute and a reasonable opportunity to respond before filing the dispute with the CCOC.An owner or resident filing a dispute with the CCOC must file a copy of the notice that he or she gave to the board of directors, together with the relevant documents concerning the dispute.

4. The CCOC may consider and accept a dispute from an owner or resident although the complainant has not attempted to exercise all of his or her rights under the governing documents, except as provided in Paragraph 3, above. For example, an owner or resident is not required under this policy to initiate a petition to call a special meeting, or to run for election for a position on the governing body, or to vote at an election or special meeting, in order to file a dispute with the Commission.

5.  A Respondent who wishes to object to any dispute filed with the Commission on the grounds that the Complainant has not properly exhausted the available procedures or remedies will be expected to provide to the Commission, along with its objection, a copy of the written dispute resolution procedure and any other relevant documents that show the Complainant did not comply with the standards.

6. The CCOC staff will review every complaint to ensure that it is properly certified by the Complainant and includes the required documentation to show that the Complainant has complied with the applicable dispute resolution procedure.If the complaint is not properly certified and documented, the staff will request the necessary information from the Complainant or return the complaint to the Complainant.

7. If a Respondent objects to a dispute on the grounds that the Complainant has not exhausted any mandatory association procedures, and properly documents its objection, the staff may suspend further action on the complaint until such time as the Complainant can show that it has complied with the applicable procedures.

8.  If the parties to a dispute do not agree in good faith on whether the complainant has properly complied with the applicable dispute resolution procedure, and if, further, the parties are unable or unwilling to mediate the dispute, the staff will present the dispute to the Commission, which will determine the appropriate action.

[CU1] As reasonable as these standards are from a due process perspective, it is important to bear in mind that the Commission has no authority to require them of an association if they are not mandatory under the applicable statute.All you can require is that they do whatever their governing documents direct them to do.