WOULD AN ASSOCIATION REALLY DO THAT?
By Eric Glazer, Esq.
Published April 1, 2013
There are tens of thousands of Board members that proudly serve on condominium and HOA boards in Florida with pride, dedication and integrity. No doubt that they are rightfully appalled when accused of being the typical "condo commando." In fact, they can't even conceive of taking actions against their neighbors solely out of spite or just to remind the owner who still is in charge.
The Florida Legislature knows that despite all the selfless volunteers that understand the definition of "fiduciary duty" there are lots of others who have abused their powers and wrecked havoc on fellow unit owners who simply disagreed with the Board's position. That's where the statutes prohibiting SLAPP suits come in and here's what they say:
(1)It is the intent of the Legislature to protect the right of condominium unit owners to exercise their rights to instruct their representatives and petition for redress of grievances before the various governmental entities of this state as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution. The Legislature recognizes that strategic lawsuits against public participation, or “SLAPP suits,” as they are typically referred to, have occurred when association members are sued by individuals, business entities, or governmental entities arising out of a condominium unit owner’s appearance and presentation before a governmental entity on matters related to the condominium association. ….
(2)A governmental entity, business organization, or individual in this state may not file or cause to be filed through its employees or agents any lawsuit, cause of action, claim, cross-claim, or counterclaim against a condominium unit owner without merit and solely because such condominium unit owner has exercised the right to instruct his or her representatives or the right to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution.
In short, this statute admits that instances "have occurred" in condominiums and HOAs where owners got sued for opening their mouths at public hearings or for making complaints about the association to a government agency.
A good example of a SLAPP suit would be if Jane, a unit owner, complains to the local building official that the association is putting on a new roof with unlicensed contractors. As a result, the project is red tagged and halted. Within a week, Jane gets sued by the association for having a dog, despite the fact that the dog now lives at the association for 11 years and is walked in plain view every day.
SLAPP suits are ones that are obviously filed for the purpose of retaliation and to shut the unit owner up. To stop them from making trouble and to remind them that if they don't like the way things are now, we can make it worse for you by drowning you with lawsuits and legal fees. The statute makes it clear that association funds can't be used for prosecuting a SLAPP suit and that a unit owner is entitled to treble damages [TRIPLE DAMAGES] and costs and attorney's fees if they successfully defend a SLAPP suit.
It's also a pretty safe bet that Board members can face individual liability that won't be covered by the association's D & O insurance policy should an owner sue the association because they were served with a SLAPP suit.
But is all this talk for nothing? Would an association really sue someone just to keep them quiet? Just because they made a complaint? Just because they exercised their right to free speech?