Office of the Common Interest Community Ombudsperson

Special thanks to Mr. Christopher J. Curtin, State of Delaware, Deputy Attorney General-Common Interest Community Ombudsman for providing this helpful information for our membership.

Below is some general information on what the Office of the Common Interest Community Ombudsman does to help common interest communities (i.e. condominiums, deed restricted single-family home subdivisions and homeowner associations) understand their rights and responsibilities available to them according to the law.

If you wish to receive information about training opportunities and other announcements, you can be added to the Ombudsman email list. See below:

ADD YOUR EMAIL ADDRESS TO OUR LIST TO RECEIVE INFORMATION ABOUT TRAINING OPPORTUNITIES AND OTHER ANNOUNCEMENTS by providing your email address to cic.ombudsmandoj@delaware.gov. Please include in the subject line, “Please Add My Name to the Common Interest Community Ombudsman’s Email List.” Please also include as much of the following information as you wish to share in the email:

  • Your Name:
  • Community Name:
  • Street:
  • Unit #:
  • City, State, Zip:
  • Preferred Telephone #:
  • Email:
  • Community Email:
  • Community Website:

TO REQUEST THE OMBUDSMAN TO MAKE A PRESENTATION ABOUT THE OFFICE OF THE OMBUDSPERSON TO YOUR ORGANIZATION EMAIL, please ask cic.ombudsmandoj@delaware.gov

General Information About what the Common Interest Community Issues to anyone contacting the Office:

The Common Interest Community Ombudsman, tries to help those involved in common interest communities like Condominiums and planned, deed restricted single-family home subdivisions created by declaration, and with a homeowners association. 

We help members and boards in these communities through Education, Dispute Resolution, Election Services, and if appropriate, investigation. Our over-arching purpose is “To assist [those involved in common interest communities] in understating their rights and reposnibilities and the processes available to them according to the law, regulations and documents governing their respective common interest community.”  29 Del. C. § 2544 (2).

Below is the information about the Office and Services routinely provided to those who contact them:

First is an overview with links to the least technical explanations from Community Associations Institute about “common interest communities” including links to general information that might help you understand your rights, responsibilities, and the processes available to you in understanding land documents governing your common interest community.

The General Assembly created the Ombudsperson’s Office with limited authority. 

We are authorized only “To assist [you] in understanding [your] rights and responsibilities and the processes available to you according to the law, regulations, and documents governing [your] respective common interest community.” 29 Del. C. § 2544 (2).

We can do this by education seminars, Alternative Dispute Resolution, including mediation, arbitration, or binding arbitration but only if the parties agree in writing.  

Our services are limited to help resolve complaints of “potential violations of governing law and documents governing a common interest community,” such as deed restrictions, requirements in a certificate of incorporation, bylaws, or rules of a community. We do this by providing mediation or arbitration services. 

We are not your lawyers. We cannot provide legal advice, or legal interpretation involving the specifics or facts about your community.

Our authorizing statute, 29 Del. C. § 2544 (2), includes these limitations:

 “The Ombudsperson is not the attorney for declarants, common interest community associations, the executive board of a common interest community association, unit owners in common interest communities, or other interested parties.

  •  no attorney-client relationship shall be implied or established by the Ombudsperson’s communication with such persons, and
  •  the Ombudsperson may not act as or appear to act as an attorney in a legal action brought by such persons.”

 Please understand:

  •  Since we are not your lawyer, we cannot represent you; we cannot provide you with legal advice or legal interpretation. We cannot make recommendations of what is in the best interest of you or your community, as those are legal representation. For those services you must seek a private lawyer experienced in community association law.

No “Orders”

  • We cannot order a board, or owner, or builder, or declarant, or other party to do or refrain from any action, like a court can. For orders directing an opposing party to take or refrain from any action, you must file a petition in the Court of Chancery.

Mediation or Arbitration, Requires the Parties to Agree:

  • Our services are limited to supplying Alternative Dispute Resolution, (“ADR”) which may consist of mediation, arbitration or binding arbitration, but only if both sides agree by signing a written agreement and agree to the fees we are required by statute to charge.
    • You may send an agreement for any form of mediation or arbitration at any time, but we cannot provide it unless both sides sign matching agreements.
    • Forms for mediation and arbitration are available on our website with more information about ADR.
    • If both parties agree to ADR, we will schedule it at the parties’ earliest mutual availability. Details about ADR are on our website
  • We send complaints to the opposing party and ask whether they consent to Alternative Dispute Resolution.
  • If the parties prefer, we can refer disputes to the Court of Common Pleas’ Community Mediation Program, which is free.  However, it requires referral from a law enforcement agency, including the Office of the Ombudsperson. You can request referral by filling out our “Contact & Complaint form” which is on our website. The Common Pleas Court has forms of its own when we refer a case.

Complaint “Review":

  • If the parties do not agree to ADR, we might choose to “review” your complaint, “To assist [you] in understanding [your] rights and responsibilities and the processes available to you according to the law, regulations, and documents governing [your] respective common interest community.”
    • This will not result in a “opinion” like a court issues but will likely contain observations and “concerns” of the Ombudsman, for the parties and the community to discuss and consider.
    • Review will not result in any “Order,” since the Office of the Ombudsperson lacks authority to make orders.
    • Our review will take considerable time as there are many equally important complaints ahead of yours already. If you need immediate response or attention, considered a consulting a private lawyer experienced in community association law. Otherwise, we ask for your patience.
    • If the parties do not agree, we cannot order participation in mediation or arbitration, but Chancery Court often can.

The DUCIOA May or May Not Apply Your Community:

If your community association was incorporated before the effective date of the Delaware Uniform Common Interest Ownership Act, (the “DUCIOA”) in 2009, it or a part of it may apply to your community. That will depend on your governing documents.  25 Del. C. ch. 81. If your annual assessment is less than the $713/year threshold ($735 after July 1, 2022) for the DUCIOA to apply, very few sections of the DUCIOA will apply.  One part that applies to all communities is your association must record bylaws with the Recorder of Deeds.  It is free only in New Castle County.  Your community may adopt part of the DUCIOA, so check to see if it did.  If your governing documents are silent on a subject covered by the DUCIOA, it may fill in the blanks.

The Common Interest Community Ombudsperson Act applies to your community regardless of its size, or assessment, or when formed.

Delaware General Corporation Law:

Any Delaware corporation must adhere to the Delaware General Corporation Law, including incorporated community associations.  Some community associations are not corporations. For example, many condominiums are created by declaration, but are not incorporated. 

The Delaware General Corporation law requires every corporation to allow access to corporate books and records, even financial information requested, in writing, under oath, and for a purpose related to membership in the corporation.  8 Del. C. §220. This is true even if the community is exempt from the DUCIOA.

Access to books and Records:

The DUCIOA allows Association members access to the recorded governing documents and most financial books and records of the Association. This should allow access to the governing documents, most financial information. But if the association cannot, the Chancery Court and possibly the Ombudsman’s Office may assist. This right applies even if your association is not a corporation.

Ombudsman’s Internal Dispute Resolution Process:

The DUCIOA allows Association members access to the recorded governing documents and most financial books and records of the Association. This should allow access to the governing documents, most financial information. But if the association cannot, the Chancery Court and possibly the Ombudsman’s Office may assist. This right applies even if your association is not a corporation.

Ombudsman’s Internal Dispute Resolution Process:

Since all associations and declarants must comply with the Office of the Ombudsman’s “Internal Dispute Resolution” procedure, if the board does not comply, you can follow the directions and forms on the Ombudsman’s website for “Procedure for Filing a Complaint.”  This Office may subpoena the records.

To bring a complaint to the Office of the Ombudsman, the statute requires that you must first present it, in writing, to the board, “on a form” adopted by the community.  However, if there is no community form, you and the Association must use the form required by the Ombudsman’s Act. The Ombudsman’s “Internal Dispute Resolution” (IDR) Form is available on our website. Although our website link is below, I also linked to this email, copies of:

Ombudsman’s Internal Dispute Resolution Process:

    • Ombudsman’s “Contact & Complaint Form.” Attach the “Internal Dispute Resolution Complaint” form  to the “Contact & Complaint” form and file it with us if the issue is not resolved internally.

The Ombudsman’s “Template” for handling “Internal Disputes” within the community is an example policy that satisfies the Ombudsman’s Act, which your community can adapt and adopt by resolution, or a rule, or policy.  The Template states a model process that a board of a community can edit to name the community, add any requirements from its governing documents, and adopt for use by the community by resolution, or rule. The Template process might be in the declaration, certificate of incorporation, in the bylaws, or rules when edited for your community. If adopted, it will become the process owners can use to bring written complaints to the board. The board could also adopt a resolution or a rule adopting the Ombudsman’s “Template for Internal Dispute Resolution” published on our website as the procedure for Internal Dispute Resolution for the community. Absent an Internal dispute complaint form and procedure, you and the board must use the Ombudsman’s Template.  Attach a copy of this Template procedure to your internal complaint for the Board to consider.

The Ombudsman’s Act requires each common interest community to have this internal process for resolving potential violations of the documents and laws governing a community. Those documents include the:

  • Declaration of Deed Restrictions, and other declarations, if any
  • Community’s Certificate of Incorporation,
  • Community’s Bylaws,
  • Rules properly adopted by the board, and
  • Resolutions by the board. 

The Laws “governing” a community might include:

  • Some state and federal statutes including  the Fair Housing Act
  • Some of the Delaware Uniform Common Interest Ownership Act, (The DUCIOA”)
  • The Unit Property Act (for condominiums older than 2009)
  • The Delaware General Corporation Law
  • A few other laws in Title 25 of the Delaware Code, as listed in the Ombudsman’s Web        page on “Important statutes”
  • Unincorporated association laws and Act
  • County Code or municipal code
  • The Ombudsman’s Act

Ombudsman’s Review:

If the Internal Dispute Process is unsuccessful, you may attach the complete IDR Complaint Form with exhibits to the Ombudsman’s “Contact & Complaint” form, with the additional, statutorily “Required Information,”which includes copies of the Governing documents.  These are necessary for us to figure out what law applies.

We usually offer Mediation or Arbitration, even Binding Arbitration to resolve disputes.  My Office lacks authority to make orders, (unless the parties agree to “binding arbitration) but sometimes, I will invite an entire community to a presentation to explain the dispute and the consequences of violation the governing documents.

By statute, my review is limited “To assist [you] in understanding [your] rights and responsibilities and the processes available to [you] according to the law, regulations, and documents governing your respective common interest community,“ 29 Del. C. 2544 (2), “regarding potential violations of the law, regulations, or documents governing [your] respective common interest community.” Id at (9). We do not review other statutory violations like Consumer Fraud, County Code violations, contract disputes, or other complaints using this process.

My review will not be a decision like a court makes if the parties did not agree to binding arbitration. I can make no order about your complaint.  Nor can I represent either party or side to a dispute since I serve as mediator or arbitration when the parties agree.  For legal advice, legal interpretation, or legal representation you must consult a private lawyer experienced in community association law.

Once we administratively process the complaint it will be ready for review.  Because of the tremendous response to this Office, and since our resources are extremely limited, we have a significant backlog of matters ahead of yours for review.  We cannot supply updates, since that takes time and scarce resources from review of other, equally important pending matters.  I ask your patience.

Other Processes are Available:

  • If the parties agree in writing to mediation or arbitration, we will schedule it at a mutually convenient time. The Act requires fees for this service as explained at our website link for “Alternative Dispute Resolution.”  Forms of agreement and more information is there.
  • If the parties prefer ADR but not by the Ombudsman, I can refer them to the Court of Common Pleas Community Mediation Program.  No lawsuit or fee is required.  However, a referral must come from a law enforcement agency, including the Office of the Ombudsman.
  • I note that most declarations of deed restrictions state that besides the board, any unit owner can enforce any deed restriction by suing in the Court of Chancery. You would be wise to consult a lawyer experienced in community association law before doing so.
  • Your County may help with County Code violations on property, like grass height, Stormwater management ponds, disabled vehicles….

General information on Common interest communities:

  • This Office can help in several ways besides review of Internal Dispute Resolution complaints:

    • Supply information about living in a common interest community.
    • Supply information about the “Transition” from developer to owner control of the association.
    • Supply Information about some services available through Kent County
    • On request, we can supply a Mentor-a volunteer, experienced, HOA board member or director, to help guide your board based on experience and common sense.  Sometimes they recommend consulting a private lawyer experienced in community association law, as I do, when a community is having trouble.

Prepare Yourself:

Some background information will help you understand the language, legal basis for, and governance of your community association.  Look at “An Essential Guide for Homeowner Leaders-Community Association Living,” and the 23 sections of the “DUCIOA” (listed in the DUCIOA, § 81-119) that apply to many pre-2009 communities.  The DUCIOA now requires all communities to record their bylaws.  If the bylaws are silent on a subject, or unavailable, there is an argument, these sections are the current controlling law, unless they conflict with your declaration or certificate of incorporation or bylaws.  Here are the links:

Consider looking over Community Associations Institute’s “Homeowners Landing Page:”  It has a list of free, downloadable information for homeowners living in common interest communities, and their boards. 

Begin By Reviewing Your Community’s Governing Documents:

We do not have your governing documents, but they are public records, available at the County Recorder of Deeds Office. I can only provide the most general comments. Most of your questions are likely answered in your governing documents. You should have copies from your settlement on the purchase of your home. These should part of the official documents of your community. If not, some are recorded, in the County Recorder of Deeds Office. Governing documents include:

  • The Plat Plan or Plot Plan
  • The Declaration of deed restrictions, or maintenance corporation or condominium
  • The Certificate of Incorporation, (available through the Division of Corporations),
  • The Bylaws, (since 2009, required to be recorded in the Recorder of Deeds Office)
  • The Rules of the community, and
  • Resolutions of the Board.

All members of your community should review these since they create mandatory obligations including enforcement of deed restrictions and enforceable annual assessments for maintaining the common areas.  Board members should be familiar with them.

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