WATCHING WHAT YOU SAY

By Eric Glazer, Esq.

Published July 30, 2012

The first thing a Board member must do, before learning all the laws, reading your docs and memorizing the rules is to immediately grow a thicker skin.  Often times, Board members hear residents say things like "so where has all our money gone" or "if you knew what you were doing, we wouldn't need another special assessment!   And these are the compliments.  So what's a Board member to do?

Most experienced Board members know that even if they figured out how to reduce assessments by 90%, there's an owner out there who will say they could have reduced it by 95%.  Over time you kind of learn to expect these comments and it becomes a little easier to let them roll off your back.  I can't tell you though how many times Board members have called me, wanting desperately to file a lawsuit against an owner who is vocal in the community and who routinely criticizes the Board members for their actions.  I'm here to tell them in no uncertain terms…..get over it.

A unit owner doesn't lose their first amendment rights to criticize their elected representatives, just because the criticism occurs behind the gates of a condominium or HOA.  Freedom of Speech, including the right to campaign against the Board, question their decisions and complain about their conduct exists in Florida community associations and can't be taken away pursuant to the First Amendment.  Because the owners have an interest in their community, communications of this nature are considered "privileged" and are protected speech.

Notwithstanding the foregoing, there are definitely times when accusations against Board members go too far and a lawsuit may be warranted.  There is no such right to accuse a Board member of stealing association funds or receiving kickbacks and engaging in other criminal conduct.  Accusing a Board member of a crime, with no proof that the crime was committed, is defamation per se, is not protected speech and can get the author of the comment in legal hot water. 

On the flip side, Board members who accuse owners of criminal conduct can also find themselves named as a defendant in a lawsuit.  I once represented an owner in an association who was vocal in his criticism of the Board.  As a result, the members of the Board of Directors jointly prepared and disseminated a letter to the community wherein they accused him of a crime, cheating on his real estate taxes.  The Broward County Judge assigned to the case, though the conduct of the Board members was so egregious, that he allowed my client to seek punitive damages against them.  The case settled.

Last week, I learned during a deposition that despite having practiced in this area for 20 years, I haven't seen everything.  I represent an individual in a community that sent a rather harmless letter to other members of the community, not accusing the Board members of stealing, but simply questioning certain decisions and wondering why so much money was recently spent.  In return, he was served with a lawsuit by the President who said he thought the letter was defamatory.   I took the President's deposition, and learned that despite the fact that there was a reputable management company in place at the condominium, he was still in favor of keeping the court appointed receiver in place.  Receiverships are normally quite costly to the association so his testimony didn't make much sense.  That is until he testified that a sister company of the receiver pays him $7,500.00 per month to use his realtor's license.  I think he should have had a thicker skin too before picking a fight with a unit owner.  That case too settled upon conclusion of the deposition.  At least to me, the action of the Board member in filing suit for defamation was the classic case of "he doth protest too much."

Anyone ever sue or been sued for defamation?  Threatened to be sued for defamation?  When, why and how did it turn out?

P.S. If you would like to register for The Condo Craze Board Member Certification Course in Orlando on August 15th or in Hollywood on November 8th, sign up at www.condocrazeandhoas.com.