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?
