Handling Resident Criticism
Question: Q: Our board made a decision a few weeks ago with which a resident disagreed - and continues to disagree, loudly and constantly. He criticizes us publicly at every opportunity, writes letters to owners accusing us of incompetence, saying we're stupid and irresponsible and should be replaced. The criticism (often expressed in foul language) is unfair and the accusations (that we've breached our fiduciary duty) are untrue. Can the association sue the resident for libel or slander?
Answer: A: The first thing you should know about libel and slander is the difference between them. Both fall under the general category of 'defamation," but slander is spoken; libel is written or expressed in some other permanent form - messages sent via e-mail or graffiti spray-painted on a wall. The second thing you should know is that both forms of defamation are difficult to prove. The courts take freedom of speech seriously and are reluctant to limit it, however distasteful the views or the means of expressing them appear to others.
In order to win a defamation claim, you have to prove first that the statements were untrue. And because some courts consider association board members to be "public figures," at least to some degree, you might have to prove not only that the statements are untrue, but that your critic was aware of that, or that he made the statements maliciously, with what the courts term "reckless disregard" for their truth. As a general rule, it is much easier for someone who says nasty things to deny that they were malicious than it is for the targets of those statements to prove that they were. Even if you can meet this very tough legal test, you must also demonstrate that the statements harmed you in some tangible way, either financially (by costing you money), emotionally (by humiliating you) or physically - by making you ill.
For these reasons, condominium association attorneys almost always counsel boards not to pursue defamation claims. That doesn't mean you should always ignore the criticism, however; distortions and lies left unchallenged, can acquire credibility they don't deserve, undermining owners' support for board decisions and damaging confidence in the board itself.
"If it's an outright lie, the board should move quickly to correct the record," Ellen Shapiro, a partner in Goodman, Shapiro & Lombardi, LLC, advises. Writing a board "position paper" on an issue is one way to accomplish that goal, she says.
But boards shouldn't respond to every criticism or react to every slur, Shapiro emphasizes. Responding to silly, petty comments will make the board seem silly and petty. And if the board appears to be overly sensitive or overly defensive, owners may begin to suspect that you have something to be defensive about.
The board's reaction to this critic, if any, should depend at least in part on how other owners are responding. If your critic is annoying other residents - flooding them with e-mail messages or slipping notes incessantly under their doors - and if residents are complaining about that behavior, Shapiro says, the board might enforce association rules prohibiting owners from creating a nuisance, going to court, if necessary, to do so.
A court may not agree that communication - even excessive communication - qualifies as a nuisance, Shapiro says. "It's a bit of a stretch,: she acknowledges, "but it may be worth a try."
But at the end of the day, criticism - often unfair, unwarranted and mean-spirited - goes with the job for community association trustees. Every community has residents who will complain about everything, and their criticism won't always be justified or polite. The board's best defenses, Shapiro suggests, are transparency - and a very thick skin.