Delaware Legislation Update: The New Ombudsman

Date: September 3, 2014

On August 12, 2014, Delaware’s governor signed a bill into law creating an Office of the Common Interest Community Ombudsman within the Department of Justice.  What is the Ombudsman charged with doing, and how will it affect your community?

Under the new law, the Ombudsman is empowered to help Delaware communities understand their rights and responsibilities.  Equally important, the Ombudsman can also help resolved disputes between a community and its members without recourse to the judicial system. 

The legislation will be found at Sections 2540 through 2546 of Chapter 25 of Title 29.  Briefly it provides that the Ombudsman has the power:

  • To inform, assist and educate interested parties about their rights and responsibilities and the processes available to them according to the law, regulations, and documents governing their respective common interest community
  • To prepare and publish educational and reference materials
  • To develop and publicize procedures for fair elections
  • To provide monitors and vote counting services for elections
  • To provide meetings, mediation, or other forms of alternative dispute resolution
  • To receive and investigate complaints regarding potential violations of the law, regulations, or documents governing their respective common interest community
  • To establish and publish procedural rules for meetings, mediation, or other forms of alternative dispute resolution
  • To hold public meetings to gain a comprehensive sense of the issues facing common interest communities in Delaware

The legislation, only introduced in April of this year, had wide support from the community.  However, there was some concern voiced by the Community Associations Institute (“CAI”), a 33,000-member, international organization dedicated to building better communities through education and advocacy.  CAI applauded the Delaware legislators for working to address concerns of common interest communities but cautioned that similar programs in other states had proven to be costly, ineffective and ultimately unnecessary.  CAI gave the Delaware legislature a report they had issued in March of this year outlining the problems experienced in other states. Although the involvement of CAI did result in some changes to the Delaware legislation before reaching its final form, the legislature decided to proceed with creating the Office of the Ombudsman.

The Delaware legislation also created a Common Interest Community Advisory Council to advise and assist the Ombudsman and to make recommendations to the Ombudsman for future changes to Delaware law and procedure.  The Council is to be made up of numerous interested parties and industry groups including owners in common interest communities; representatives of state and local governments; people appointed by the Legislature; members of the bar; and appointees from the Home Builders Association of Delaware and CAI. 

The Council is supposed to meet at least four times a year.  Several explicit goals of the Council include: (1) creating a mechanism to increase collection rates; (2) developing a conflict and dispute resolution process; (3) creating a mechanism to register common interest communities; (4) developing an alternative to the current lien process; and, (5) studying the feasibility of requiring all common interest communities to pay an annual per unit assessment to support governmental services.

This legislation has the potential for sweeping changes to the way Delaware common interest communities operate.  We will continue to monitor the implementation of this legislation, but please contact us should you have any questions about how this legislation might relate to your communities.