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By: Jonathan Romvary
How far can a Board go in fighting against what they believe is unfair homeowner criticism? Can they publish a formal response to unfounded allegations? How should Associations address online criticism on unofficial Facebook groups created by dissatisfied homeowners?
These issues were partially addressed in a recent unpublished California Appeals Court decision in Kulick v. Leisure Village Association (2018). Kulick involved two consecutive lawsuits between a homeowner who was anonymously publishing an unofficial newsletter that was highly critical of his Homeowner’s Association, the Association’s Board and its attorneys. Unfortunately for the homeowner, the HOAs rules specifically prohibited the dissemination of anonymous publications to the Association’s members and the Association successfully filed suit against the homeowner for breaching the Association’s covenants, conditions and restrictions (CC&Rs) and was awarded more than $125,000.00 including punitive damages.
After losing his appeal, and apparently not learning from the prior lawsuit, the homeowner began republishing his anonymous newsletter criticizing the Association’s Board, this time asserting that the Board and its officers committed perjury, extortion, obstruction of justice, racketeering, and lying and cheating. The Association’s attorneys responded to the most recent allegations by distributing an official letter to all of the homeowners addressing the allegations as a “reckless communication” containing “unfounded, inaccurate, and spiteful allegations” against the Association and detailing the prior lawsuit against the homeowner. Feeling attacked by the HOA, the homeowner filed a lawsuit against the Association for, among other things, defamation. The HOA defended itself saying its actions were protected under California’s anti-SLAPP laws which are designed to protect defendants who have been sued for acts in furtherance of a constitutionally protected right of free speech or petition. The trial court agreed, finding that the Association’s letter constituted “protected activity” as a public writing relating to an issue of public interest to the Association’s homeowners’, i.e. the lawsuit between the Association and homeowner. Ultimately the California Appellate Court upheld the trial court’s ruling.
From Kulick, it is clear that Associations may respond to individual criticisms that are not legally permissible (e.g. false assertions of fact, etc.) and have certain rights against defamation published by its members. However, it remains unclear to what extent Associations can restrict alternative forms of publications, such as Facebook community groups or anonymous Twitter accounts. In the age of Facebook, where publishing and distribution is free and easy, Associations must remain vigilant. False accusations and anonymous publications can cause significant disruption to the operation and reputation of an Association. Associations should be alert for publications containing false assertions or publications that purport to be official communication and should address any statements that defame the association, its board of directors, managing agent, or employees.
If you have any questions on how your Association can be proactive and protect itself against unofficial homeowner publications or would like more information, please contact Jonathan Romvary at [email protected].