TC Palm Q&A Column, June 17, 2018

By June 17, 2018News, Questions & Answers

Editor’s note:  Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC, respond to questions about Florida community association law.  The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.

Q: I am on the Board of Directors in my community and a handful of owners continue to spread rumors and lies about the Board and projects that we are working on.  They are even accusing the Board of misfeasance and other improper acts – all of which are complete lies. What can we do?

-B.B., Treasure Coast

A: Unfortunately, this is a very common situation and a common question.  Board members are volunteers and giving up their time to their community.  For the very large part, most all Directors are upstanding and doing their best for their community.  As you would expect, however, residents/owners do not always agree with the goals and actions of every Board member and rumors quickly spread.  Often times these rumors are salacious and inflammatory.

A few comments.  First, truth is not defamation.  If a resident is making a truthful statement, even if you don’t like the fact that it is being circulated, it is not defamatory.

Second, it is important to discuss the concept of a qualified privilege.  One of the requirements for defamation is that the statement must be published outside of a private conversation.  When owners of a condominium or homeowners association are talking to each other, it is similar to shareholders talking to each other, which is essentially like the corporation talking to itself.  Thus, the law wants to protect the rights of shareholders having open and candid discussions to further the business interests of the corporation. This protection is the qualified privilege.

The damaged party can, however, overcome the privilege and pursue the publishing party when you can demonstrate malice, meaning the statements within the corporation are not really to further the business interests of the corporation, but rather to intentionally harm the individual.  

For example, if owners are sitting by the pool and begin making false statements that “Director Smith stole a cookie from the cookie jar”, those statements are not necessarily actionable unless you can demonstrate that the false statement was made with malice towards Director Smith.  The standard is significantly more complicated, but I use this example to demonstrate that it is a complicated issue that is fact sensitive with many factors weighing in favor or against overcoming the qualified privilege. If you are a Director and believe that the Association has been damaged or that you have been damaged as a result of slander or libel, you should contact a licensed Florida attorney to determine your rights under Florida law.

Q: Our Bylaws provide that the annual meeting must occur in October of every year, but our community is fairly seasonal and we want to make the meeting in January.  How do we do this?

-J.B., Stuart

A: The meeting must be held as required by the Bylaws, so if the Bylaws specifically require the meeting to take place in October, the meeting must take place in October.  To change this requirement, you would need to amend the Bylaws which generally requires a vote of the membership. You could require the meeting take place in January, in the first calendar quarter, or any time during the year in the Board’s discretion.  Be careful, however, because if the Association approves the amendment at the annual meeting where Directors are elected, the result will be a very short term of office because the next election must take place at the annual meeting, which in your situation would occur 3 months after the October election.  This can be avoided through proper drafting, but it could be an unintended consequence if not anticipated.

Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC.  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.