Mondo Condo
When things went wrong
at 2987 Kaläkaua.

Ian Lind

April 3, 2002

In 1998, John Dubois moved into his dream home, a studio apartment in an oceanfront condominium on Diamond Head’s "Gold Coast," a 41-unit building known simply as 2987 Kaläkaua.
     Within months, his dream started to crumble. Instead of a quiet retreat from the stresses of the workaday world, Dubois ran into the immediate realities of condo life: neighbors, condo boards, rules and enforcement.
     What started as a petty disagreement with a neighbor rapidly escalated into a morass of charges and countercharges, allegations of harassment and discrimination, multiple restraining orders and lawsuits, two arrests and, ultimately, foreclosure and loss of the title to his apartment.
     Dubois, who is gay, says he’s been a victim of unfair treatment because of his sexual preference, and points to a second level of discrimination against his partner, Tim Prindable, who he says suffers disabling bouts of depression.
     "I really think we’ve been targeted and that’s what really hurts," Dubois said in a recent interview. "It’s incredible how they contort things to make us look like we’re the bad seed."
     "All I wanted was a house, a home, and to be as relatively content as we could possibly be," Dubois said.
     But the condominium’s board of directors, managing agent and Dubois’ neighbors all paint a very different picture. They say Dubois and Prindable repeatedly refused to comply with the condominium’s rules, were verbally abusive, used offensive language, harassed board members and building managers (especially women), brought a dog into a "no pets" building and generally have been unwilling or unable to get along with other residents. Any discrimination claims, they say, are groundless.
     Board President Lois Cain, and other board members reached by Honolulu Weekly, declined to comment publicly on the matter, citing the pending litigation; and no one, except for Prindable, agreed to be photographed. Their positions, however, are spelled out at length in hundreds of pages of court records and related documents.
     For those unfamiliar with condominium life, each condo is like a small city, governed by an association of apartment owners with an elected board of directors made up of apartment owners who volunteer to serve as the condominium’s "city council." They pass rules, adopt a budget, establish fees for maintenance and improvements and set the community’s basic direction. The association, through its board, then hires professional managers to implement its policies, all subject to approval by the owners.
     When things are going well, condominiums are great places to live. When disputes arise and aren’t resolved, they can become a nightmare.
     In Honolulu, where condominiums made up 30 percent of all occupied housing units in 1990, a greater share of the housing landscape than in any other American city, John Dubois’ simple tale of condo life becomes a cautionary tale of much wider public significance.

Don’t try this at home.
     John Dubois’ tenure at 2987 Kaläkaua has been short and stormy. Dubois is 46, blond and blue-eyed, a flight attendant who was born in Texas but has spent most of his adult life in Hawai‘i.
     "There are only eight apartments with yards on the whole Gold Coast, and this is one of them," Dubois said, pointing to a small area filled with palms and other plants. "I thought that was really sweet. I could have my own little yard."
     Dubois managed to get a great deal. Real estate records show he purchased the 616-square-foot apartment at a foreclosure sale in April 1998 for $150,500, just half what the previous owner paid.
     That great deal may have been his last bit of luck.
     Dubois and Prindable, who moved to Honolulu after a stint teaching school on Guam and a fellowship in South Korea, quickly ran into trouble with their next-door neighbor, Richard Diehl.
     Within weeks of their arrival, Diehl complained that a light on Dubois’ länai was shining into his living room. Dubois countered that Diehl, an acupuncturist and massage therapist, was operating a business out of his apartment.
     In mid-October 1998, Dubois wrote to the board complaining that Diehl had built an unauthorized partition on the fence that separated the gardens at the rear of their apartments in an attempt to block the light.
     Instead of a getting a reply from the board, Dubois said he was surprised to find a letter from Diehl taped to his front door. "He [Diehl] complained about the light. And he said I was taking showers that were entirely too long," Dubois said. "And he complained about Tim — referred to in the letter as my boyfriend."
     "When he put in there about my boyfriend," Dubois said, "that’s what clicked the light on for me."
     The unneighborly dispute escalated. Dubois says his complaints about Diehl’s business, which appeared to violate building rules, went unanswered. He later learned that Diehl was a member of the condo’s board of directors.
     Then, in May 1999, an early-morning incident turned into a case of alleged assault after Diehl went next door at 6 a.m. to complain about door slamming and other loud noises coming from Dubois’ apartment.
     "He started in, waving his finger at me, but I told him I didn’t want to be involved," Dubois said. "Then he forced the door inward, reached around and grabbed my neck and started aggressively violating me."
     Diehl could not be reached for comment on the incident, but court records show he entered a plea of no contest to assault in the case, which was later erased from his record following a deferred plea agreement.
     Prindable, a nervous, gaunt and intense man who wavers between withdrawal and assertiveness, then started calling the police whenever he thought Diehl’s television was too loud. He says Diehl intentionally turned the volume up to annoy them in retaliation for having pressed charges, while others say the complaints to police were just harassment.
     Dubois got into a separate, lingering feud with the association over costs to repair his kitchen cabinets, which were damaged when rain leaked down a pipe chase during a storm on New Year’s Eve in 1998.
     In early 1999, Dubois was elected to the board of directors and became its secretary, but was ousted by a special meeting of owners less than a year later when the board declared it was impossible to conduct business because of his "disruptive" behavior, documents show.
     What followed was a continuing stream of "abusive language and harassing letters and telephone calls" to other board members, the resident manager and the managing agent, according to documents filed in court.
     In mid-2000, the association successfully sued and got a court order enjoining Dubois and Prindable from "harassing, threatening, or contacting" the project manager or members of the board, or "interfering with the operations of the project and breaching any conditions, covenants, or restrictions regarding the use of the property." They were told to communicate with board members only in writing, by fax, or through their attorney. Dubois was also barred from parking at the building because of prior parking violations.
     Dubois calls it "the start of the oppression."
     "They got documentation from people in the building who had rough edges with me," Dubois said. "In part, it may have had some validity. In part it was fabricated."
     Dubois acknowledges his repeated and aggressive questions, but says they were necessary because he could never get straight answers.
     "I’m a homeowner," Dubois said. "I have a right to call and ask questions, to find out things I don’t know. We’re paying for that. Any homeowner can do that.
     "But the more you do it, the more they say you’re harassing," he said.
     There are, however, numerous accounts by other residents in court files alleging harassment by Dubois or Prindable.
     Condo owner Liudmila Finney described an incident in the parking lot with visiting friends when she touched Dubois’ car while opening a door.
     "I immediately looked to see if I scratched it. Nothing, there was not a spot," Finney said. "Suddenly, out of the blue [Dubois] appeared, screaming at us. We apologized, very politely, but he didn’t want our apologies. He jumped around us, scaring the baby, screaming, ‘You want to fight? You want to fight?’"
     An upstairs resident said Dubois cursed at him several times without cause. In a letter to the building manager, he complained that Dubois shows "no respect for others in this building. I would appreciate it if something could be done before he actually does something violent!"
     Three women, frightened by these outbursts, obtained restraining orders requiring Dubois and Prindable to keep their distance, and they responded in kind. The resulting mutual restraining orders created special difficulties in the small building, where they might run into each other in the laundry room, the common storage area, or one of the limited exits to the parking lot or the street.
     Last year, Dubois was arrested after allegedly violating the restraining order by harassing a female neighbor.
     According to a police report on the incident, "Dubois returned and while in front of her unit … started shouting, ‘civil rights, baby, civil rights, baby.’" Dubois then allegedly looked directly through her front window and yelled, "Are you scared, are you scared?" Dubois was allegedly then heard chanting, "You want war? We’ll give you war."
     The harassment charge was later dropped, while the contempt charge is pending.
     "Yes, I’ve been angry," Dubois said. "I’m human. As a human being, what should I do? I’m trying to deal with this, with attorneys and other sources of help. We’re caught in a lot of glitches."
     Susan Hippensteele, associate professor of women’s studies at UH, an attorney and a former campus sex-equity specialist, said people who feel they are being discriminated against often become hypervigilant.
     "Once they identify what they think is a pattern of discriminatory conduct, they will fill in the blanks and start questioning all the other things happening to them," she said. "You lose perspective when you’re in the middle of it. And if there’s a perception that rules are enforced in a way that is uneven or unfair, that can certainly contribute and be a basis to feel that you are being picked on."

Enter Einstein
     Immediately after Dubois was removed from the board in January 2000, he brought home a 4-month-old English bulldog named Einstein.
     If a bulldog can be considered cuddly, Einstein would fit the bill. Even some staunch opponents admit Einstein is a sweet dog, and admirers regularly stop and fuss over him during twice-daily walks through Kapi‘olani Park. But the question of whether or not Einstein can legally remain in the building is at the center of a housing discrimination claim filed by Prindable in September 2000 and still pending before the Hawai‘i Civil Rights Commission.
     2987 Kaläkaua, like many other condominiums, has a no-pets rule. Under federal law, though, an exception must be allowed for service animals required because of a disability, such as a seeing-eye dog. Prindable says the condominium rules should also make an exception for Einstein because he is psychologically dependent on the dog.
     The association questions the legitimacy of Prindable’s disability claim but has allowed Einstein to remain temporarily on the premises under strict rules pending a final decision by the Civil Rights Commission.
     Comfort animals, or "feel-good dogs," as some call them, have become a big problem for condominiums, said attorney John Morris, who represents the owners’ association at 2987 Kaläkaua. "Anyone who doesn’t mind claiming they are psychologically dependent on a pet qualifies, at least in theory, as disabled."
     Morris, who was the first condominium specialist with the Hawai‘i Real Estate Commission before going into private practice, says an overly broad definition of "disability" allows virtually anyone to circumvent rules against pets
     "The definition of disability is so broad that you and I could easily be ‘disabled’ if you’ve got no compunction about it," Morris said. He describes two recent cases to make his point. In one, a woman knocked down the wall between two condo units she owned. When the condo board told her that was against the rules, she claimed claustrophobia, a disability for which "reasonable accommodation" should be made. In another case, a couple with a child, two dogs and a cat lives in a one-bedroom unit of a no-pets condo, also on the Gold Coast. The pets need to be reasonably accommodated, the couple claims, because the child has been distressed about the death of a grandparent.
     According to the association, Dubois first defended Einstein by submitting a letter from a physician stating that he required the dog for his "personal safety."
     Then, pointing to other pets quietly kept in the building, Dubois attacked efforts to enforce the "no pets" rule as selective and discriminatory.
     "I heard that it was a ‘don’t ask, don’t tell’ policy when it came to pets," Dubois said. "The preference was for cats, because they are simple to keep hidden — not to say people didn’t know they existed," he added with a smile, a charge the association has strongly denied.
     Only later was Prindable’s "depressive disorder" finally cited as a justification for permitting Einstein in the building, and the issue of housing discrimination officially raised.
     Dubois said the shifting justifications were the result of a well-intentioned attempt to avoid having to disclose Prindable’s psychological problems, while the association says they show the couple was just shopping for any excuse to keep their dog.
     Morris and other attorneys working on the case say the Civil Rights Commission’s failure to make a quick decision has greatly complicated the court proceedings and driven up the costs for everyone. Although the commission was envisioned as a quick and inexpensive alternative to the courtroom, it has already taken 18 months to consider Prindable’s claim.
     "They’re supposed to act in 90 days," one attorney involved in the case said. "But they’re an administrative agency of the state, and under the auspices of government, do anything they want."
     "The reality is that cases go in and never come out," said Jeff Portnoy, a First Amendment attorney who successfully challenged another aspect of the commission’s procedures. "There are legions of stories of cases still going after 12, 18, even 24 months. I could have brought a suit, gone through discovery, finished the trial and appealed in the same time period."

Friday the 13th
     Perhaps the most controversial action came on Friday, July 13, 2001, when John Dubois’ apartment was sold in a foreclosure auction. The buyer was none other than his own condominium association, which bid just $1 plus the value of an assessment they claim was due. Two weeks later, a letter arrived telling Dubois and Tim Prindable to get out or face eviction.
     Unlike most foreclosures, Dubois’ mortgage payments were up to date, and he regularly paid the standard monthly condominium maintenance fees.
     But when the owners’ association went to court for an injunction against Dubois, it also demanded he pay their legal bill as well as his own, as allowed by Hawai‘i law. Dubois refused.
     The disputed bill was just $272.81 in May 2000, according to a "friendly reminder" mailed to Dubois, but it increased quickly after the association filed suit a month later. It reached $16,800.11 by Dec. 4, 2000.
     The association then placed a lien on the apartment and started foreclosure proceedings — in essence taking Dubois’ home in exchange for the disputed fees, which had risen to $47,519.36 by the day of the auction. The sale price was finally recorded as $71,700, made up almost entirely of the value of the unpaid legal fees.
     State law allows a condominium association to assess an apartment owner legal fees and costs incurred enforcing their rules, which they did in this case. Although the law allows an owner to dispute the charges, it also requires them to first pay up and get a refund later if they prevail, similar to the procedure for challenging a credit card billing.
     Court records show Dubois’ attorney did submit several letters disputing the charges, but Dubois failed to make the payments that would have stopped the process, prevented further costs from accumulating and triggered mandatory arbitration of the dispute. And, as positions hardened, the condominium association appears to have chosen to press its advantage in order to force Dubois out of the building.
     The association says Dubois and Prindable prolonged the case and sent costs soaring with a series of frivolous complaints to members of Congress, federal agencies, then-Attorney General Janet Reno, disability-rights organizations, the ACLU and other agencies. The pair complained of discrimination, "prejudice, cruelty and oppression," and of violations of "the constitutional right to pursue happiness."
     "I was a social studies teacher," Prindable said in an interview. "I taught my students if you feel strongly about an issue, write your City Council members, your congressmen, and ask their advice.
     "That’s all we did, and they held that against us," he said.
     Mark Clement, who took over Dubois’ case last year, believes some homeowner associations and their attorneys are misusing the law.
     "People owe a few hundred dollars, then the attorney comes in and suddenly the bill is $5,000," Clement said. "People are losing their homes."
     "If a homeowner wasn’t paying for services, for the necessary elements of a functioning building, a lien would be appropriate to enforce the obligation. But I don’t think a homeowner should be foreclosed on to pay legal fees in an ongoing dispute."
     "It breaks my heart to see it happen," Clement said.
     A last-ditch attempt at mediation will begin later this month under court supervision, but prior efforts went nowhere.

No winners
     There aren’t any winners in this case. Association leaders say they’ve been "scared to death" by their attorneys, and are constantly worried that anything they say or do will drag them even further into the ongoing litigation. Board members wonder why they ever volunteered for the unpaid role. They worry about the financial burden of pursuing the case this far, and fear property values will be depressed and their investments endangered if it isn’t resolved favorably. Some have sold their apartments and escaped from the building, and others may follow.
     Meanwhile, Dubois and Prindable say they are emotionally drained. Both have been under doctors’ care for emotional distress and rely on a variety of prescribed drugs to cope with the pressures. Although the men remain in the apartment for now, attempts to challenge and overturn the foreclosure have been unsuccessful.
     Why the case has become such a quagmire isn’t clear. Attorneys involved in the case point to several factors, including lack of early mediation, a clash of strong personalities, lack of clarity in the legal requirements for so-called comfort animals and administrative delays at the Civil Rights Commission.
     Perhaps the real problem is more basic. People are attracted to condos for the same reason we like eating in restaurants — someone else does most of the work. In a condo, individual apartment owners don’t have to worry about routine chores like yard work and maintenance. But when unusually difficult problems arise, volunteer boards made up of well-meaning apartment owners just can’t cope. To protect themselves and other owners, they have to turn to lawyers and the courts. But this case is a reminder of how high the psychological and financial costs of that can be.
     There’s perhaps only one thing opposing sides seem to agree on after three years of misery. People on both ends of the conflict privately say they yearn for the live-and-let-live, laissez-faire atmosphere that used to prevail in their oceanfront building. It’s what attracted them to the building, and what they wanted to preserve. But somewhere along the line, in their continuing conflicts, that fragile element was lost. And that, all agree, is a tragedy.