Ask An Expert: About Your Condo, HOA Rules

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By: Steven R. Braten Esq. Special to the Boca and Delray newspapers

  1. Can an association sue a member of the association for defaming the board, or can only the individual board member make the claim?  What do you suggest an association due to stop harassment from a member of the community, such as abusive e-blasts or defamatory posts on a blog site?

N.S., Boca Raton

  1. These are some great questions.  The answers, however, are not simple.  First, it is important to state at the outset that owners/members living in community associations are often under the misconception that they may criticize a board’s conduct on blog sites or social media forums, including community Facebook pages without regard to the content.  This is simply not the case.  Many association members believe they have a First Amendment right to express their opinions regarding decisions their board has made or are anticipated to make at a future meeting. This is simply not the case.

Assuming the First Amendment is applicable (which can be the subject of a whole separate column), it does not protect all speech. It does not, for example, protect speech that leads to illegal activity and/or imminent violence, obscenity, defamation, and libel. The First Amendment also does not protect speakers from liability for the foreseeable consequences of their speech.  Defamation constitutes an injury to reputation. The injury may occur by means of libel (written) or slander (spoken).  Liability for defamation can extend to those who publish the defamatory remarks of others. The generic elements of defamation are: (1) false statement that is expressly implied to be factual (statements are not defamatory if they are true); (2) intentionally published to a third party; (3) no privilege applies; and (4) the person defamed suffers damage.  In general, each time the defamatory statement is communicated to a third person who understands its defamatory meaning as applied to the injured person (soon to be a plaintiff), the statement is said to have been “published,” although a written dissemination is not required.  Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed.  The essential condition of recovery for defamation is the existence of falsehood. Because the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as libel, statements of opinion are not actionable.  An association can sue homeowners for defaming directors if it can be shown that the defamation is related to how the director performed his/her duties and responsibilities so as to have a natural tendency to affect the corporation disadvantageously in its business. If the ostensibly defamatory statements cannot be reasonably interpreted as having been made against the association, the association has no cause of action for defamation.  Rather, the action is personal to the director.

As you can see, this is a very complicated issue. So, in the case of a member sending defamatory e-blasts to other members regarding the board as a whole, or directed to the association as an entity, your association may have a cause of action against this member for defamation.

This bring us to your next question about what else your association can do. One option, is to adopt rules and regulations that establish a certain minimum level of behavior, or code of conduct that all members must follow. Remember, your association is a private corporation, not a governmental entity.  In 1987, the Florida Supreme Court held, in Quail Creek POA v. Hunter, that neither a homeowners association’s recordation of its covenants in the public records, nor the enforcement of its covenants in state court, created a sufficient nexus to evidence “state action” such that the First and Fourteenth Amendment would apply. The Florida Supreme Court has also held that individuals give up certain rights to live in a condominium, which would equally apply to other deed restricted communities, such as a homeowners and property owners associations. Therefore, rules and regulations that prohibit defamatory speech directed at the association, a board member, the board in its entirety, or another member or management may be appropriate. Violation of such rules could result in fines being imposed against the person who engaged in the behavior in question. Be sure to consult your association’s legal counsel before adopting any such rules or regulations. Preferably, your association’s legal counsel should draft such a policy, if appropriate for your community.

Steven R. Braten Esq., is Managing Partner, Palm Beach of the Law Firm Goede, Adamczyk, DeBoest & Cross, PLLC, with offices located at the Sanctuary Centre in Boca Raton.  Visit www.GADClaw.com or ask questions about your issues for future columns, send your inquiry to: question@GADClaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein.The hiring of an attorney is a decision that should not be based solely on advertisements or this column.