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The Smart Board & Property Manager Legal Guide: Dealing With Inquisitive & Disruptive Owners

Alan Tannenbaum, Esq.:

I would like to welcome everybody to our Smart Board & Property Manager Legal Guide today. It's a topic that you folks requested be discussed, so we put it on the agenda. Based upon the amount of people who have responded, it is an issue that's at the top of mind for a lot of associations. This is Alan Tannenbaum. I'm here with my partners, Cindy Hill and Jon Lemole. Jim Turffs is also with us. We're going to be dealing with inquisitive and disruptive owners and how best to deal with it. I don't know if it's a product of a general breakdown in civility in society, a lot of the pressures that people are on economically so forth, but there seems to have been an uptick on issues of confrontation around the state.

We have associations where it seems like a quarter of their legal budget is being spent on dealing with document inquiries and disruption at meetings, dealing with information that's flying around online. People set up websites of various sorts, but is created a significant problem. So we're going to cover some of the basics of the statutes, document requests and written inquiries, some protections or limitations on participation at board meetings. But then we're going to get into in the last half, online communications, physical intimidation and harassment, how best to deal with that. So at this juncture, I'm going to turn the first section over to my partner, Cindy Hill who's going to talk about requests to inspect and copy association records.

Cindy Hill, Esq.:

Good morning, everyone. I'm Cindy Hill as Alan just said. We're starting out the presentation with more of the inquisitive part of the presentation, and we're going to get down to I think what most people are more interested in honestly in terms of the disruptive part as we get further down in the presentation. But it is important to start with this inquisitive part with I see a lot of misunderstanding with board directors and owners in particular about their rights to request to see records. Condominiums and homeowner associations are corporations and the owners are members of those corporations, and they have a right to see the corporate records, generally, with some statutory exceptions. It's important that the timeframes and the rights that involve are understood so that an association doesn't inadvertently fail to comply with the statute because there are some penalties.

So although the statutes have some similarities, I'm going to start by going over condominiums and then go over homeowner associations in order to make it easier to see what the statutes are. Because if you know where to find this information specifically, it's much easier to address how to respond to an official records request than trying to just open up chapter 718 or 720 and find where it is. Starting with the condominiums, again, chapter 718, when you receive an official records request from an owner, and I should add if they send it via email and you don't have a policy saying they can't send it via email, it could be considered an official records request. Sending it certified mail creates a presumption that the association did receive it and can run this 10-day trigger that I'm getting ready to discuss, but an email can also be considered an official records request.

So I strongly encourage my associations to have policies governing how a request is made because, again, as you can see here in this statute that the request must be responded to within 10 working days. About halfway down there, the association has to respond to request within 10 working days after receipt of a written request from an owner to review records. If they've sent it certified mail, there will be a signed card to sign and the association will then have a clear timeframe. Again, if an owner sends it via email, you might not even get it on the other side. So these are considerations to think about because 10 working days, by the way, and I don't know why they say working days instead of business days, but 10 working days is your timeframe for turnaround.

Now the next issue is you get owners who think that the records have to be emailed to them or mailed to them or that they have a right to somehow have them delivered to them, they do not have that right. The association has the discretion if they want to to email records to an owner, particularly if it's just one record and it's easier to do that than schedule an inspection, but the association is not obligated to do that. As you can see in the statute, compliance with a request is met by having the records available for inspection or copying, and you can make them available, again, electronically. But compliance is having them available for inspection or copying, which is scheduling a time for the owner to come in and review the physical records. If that's what the association chooses to do, that's the minimum they're required to do.

If the records are not actually printed out, the owner can look at a computer screen and ask that they be printed because in a world where we used to have boxes and boxes of documents, that's not really the case anymore. We now have a lot of documents that are only digital, so if an owner requests to have those printed, you can do that. I also have associations that provide flash drives. So there's a lot of flexibility on the associations part 'cause the limitation, the absolute minimum they have to do is make the records accessible. Again, they don't have to email them out, they don't have to mail them out. They have to make them accessible, and they have to make them accessible in that 10-day timeframe, which means not necessarily they have to deliver the documents in that timeframe, but they need to contact the owner and let them know the records are available for them to schedule a review and come see. So moving to the next-

Jon Lemole, Esq.:

Yeah, we actually had a question about that in the chat. I think the key point, and correct me if I'm wrong, is that the statutory requirement is relating to an inspection of the records. That would be the key word, right, that you don't have to provide copies if you don't necessarily want to. You have to make the records available so that the owner can come in and look at them. Is that a fair point?

Cindy Hill, Esq.:

The word the statute uses is makes accessible, access, access to the records. I'm going to get to copies and what they can charge for copies as we go down. But yes-

Jon Lemole, Esq.:

Okay.

Cindy Hill, Esq.:

... that is the point to make that records have to be available for access by the owners. So again, an association doesn't have to scramble around and email everything to someone within 10 days. Within 10 days they have to respond to the request and say that the records are available for the owner to access. Usually at management's office, that's usually how it's done. If you're self-managed, there's some more challenges for that, but that's getting off point.

Alan Tannenbaum, Esq.:

Cindy, can there be a limitation on the number of requests that a particular owner makes?

Cindy Hill, Esq.:

But under the statute, no. If you're just operating under the statute, owners could be making requests every day. That being said, if you've already provided access to records, one of your responses can be, "We already gave you access to those records." Repetitive requests are not favored, but an owner could make repeated requests, absolutely, if you don't have a board policy. For the next condominium slide, this one was 718.111, okay, 12(c), it looks like it has moved on. Okay. Owners have a right to make copies under the Condominium Act at a reasonable expense. There's more specifics in the HOA Act. I'm going to describe them in a moment, but a reasonable expense. What does that generally mean? If you're in doubt, you can send them out to a copy service if it's a certain amount of documents. For instance, if they want 300 copies, you can send it to a copy service and charge them for that expense. That would be a safe way to approach it.

Other than that, if an owner only wants two or three pages of something, is it even worth nickel and diming for that? These are considerations that you can put into the policy, as Alan was just asking, the boards have some discretion as to how many requests can be made. Board has some discretion as to what they consider reasonable expense and putting in a policy so an owner will not claim to be surprised, that it's going to have a cost to have a certain amount of records actually copied, which is also what this statute says, that the condominium board can adopt rules regarding the frequency, time, location, notice and manner of record inspections and copying. These are policies that can set all of these expectations onto paper so that you don't get owners who think they're being picked on because they have to pay for copies or think they're being picked on because they have to come into the office. You can respond and say, "We are not picking on you, we're not putting burdens on you, we have a policy.

We have a policy so that all owners have expectations about how the process works, what they may be charged, and that everyone is treated equally." So I strongly recommend having policies. As Alan was saying in the opening comments, we are seeing more and more owners who are requesting official records, repeatedly requesting official records because for whatever reason they think that maybe that's going to hassle a board they don't agree with. We're seeing a lot of official records requests that are getting quite onerous, so a policy can really put some breaks on that. Again, when I was saying you have the 10-day timeframe, there's a penalty potentially if you don't follow it. Failure to provide the records within 10 working days creates under the statute a rebuttable presumption that the condominium association willfully failed to comply. Under that claim, the condominium association can be fined a minimum of $50 a day up to 10 days.

So not necessarily the biggest fine that an association could impose, but certainly worth considering and also worth considering that the condominiums do have a duty to provide access to official records, and failing to do so can really lead to a lot of problems in looking not transparent and not complying with Condominium Act. So before I move on to HOAs, though, one last tweak that condominiums have that the HOAs don't have in their official records request statute is that condominiums must make certain records available to renters. Those records are the governing documents, your declaration of condominium, your articles of corporation, your bylaws, any rules and regulations and any applicable milestone inspection reports or turnover inspection reports. So those do have to be available to tenants, so be aware of that to the extent that for years there was no obligation to provide records for tenants unless a tenant was an authorized agent or the owner, there is now a tenant obligation.

So moving now to the homeowner association statutes on point, they are very similar, same 10 day. This one does say 10 business days after receipt by the board or its designee of a written request. Stronger language here supporting a certified mailing or a mailing other than an email. But again, a policy will help clear that up. Going back to Jon's question about what is the proper term for what the obligation is, the obligation again is access. Compliance with the request is met by having the records available for inspection or copying or by making it the option of the association the records available electronically. So again, the obligation is to make the records available for inspection accessible, and at the option of the association if they would rather make them available electronic, they can do so. The copy provision of the HOA Act is more specific than the condominium.

This one provides that if the homeowner association has a copier where the records are maintained, it must provide parcel owners with copies on request during the inspection if the request is no more than 25 pages. So if the request takes place at a management office where there's a copier for homeowner association up to 25 pages can be provided. It also says that owners can use their portable devices to make copies. That's standard industry practice now, but going back 10 years ago or so, there was some debate on that, but no debate anymore. People can bring in their own scanners, their own printers, their own copiers. They can use their smartphone, they can use their iPad. They can make digital copies on their own. The association cannot charge for that or restrict that.

Returning to if it's not already been said enough, the board policy, oh wait, not to written inquiries, slide needs to back up. HOA boards also have the option to make a policy for record inspection, but the statute limits them that they cannot limit a parcel owner's right to inspect records to less than one eight-hour business day per month. I've had some owners debate. What that means, they get a whole eight hours to inspect records. Well, no, it's just that they can't limit it to less than eight hours a month. So for instance, they couldn't tell an owner that once a month you can only have two hours to inspect records. I'm not sure where this particular restriction came from, but again, it can be useful for limiting owner requests that are getting onerous.

The penalties are very similar for HOA that it's a rebuttable presumption that they willfully failed to comply if they don't meet the 10 days and $50 a day up to 10 days, $500. Before I turn this over to Jim Turfs who's going to discuss condominium written inquiries, some general considerations, and we could spend this whole presentation, by the way, on official records requests. So I know there's going to be questions, but some general considerations are that the $50-a-day, up to $500-a-day potential penalty is not automatic. We've had owners send invoices for $500 due for the alleged failure of the association to provide records. It is not an automatic. If an owner does want to contest and seek those fees, they're going to have to go in front of an arbitrator or a judge and have a ruling.

Another general consideration is there is no obligation to create records that don't exist. When you have an owner who asks for, "I'd like a list of," whatever, "a list of violations," if you don't have a list of violations, you don't have to make one. Another consideration is that there's case law saying that it's not excusable for an association to not provide financials due to the fact they're with a bookkeeper or accountant for review. Financials should always be available for owners to review. Another consideration is while a tropical storm or hurricane can be reason to delay the ten-day timeframe, it can't be extended unreasonably. Once businesses are operating, it's expected the association will also be operating.

I could spend another 20 minutes on this topic, but emails, texts, there's a lot of questions about that because, of course, emails are primarily how many boards are communicating. An email can be an official record open to inspection by owners if it is related to the operation of the association. That's the language in both the HOA and the condo statute that all records that are related to the operation of the association are in the catch-all provision. In addition to the records that are listed, it must be provided. So an email can potentially be related to the operation of the association and may be provided. If a manager's copied on the email, there's a strong argument that it's related to the operation of the association and must be provided.

There is a condominium declaration from the Division of Condominiums, which is not, I won't get into academics, but let me just say it's not necessarily binding, it's persuasive that says that an email does not have to be on a device owned by the association in order to be accessible. It can be on a private device such as someone's smartphone and maybe still be accessible. That's a whole can of worms that I could spend another 10 minutes on. I'm not going to, but if I haven't already made clear, policies will really help with these issues. They'll provide clarity, understanding and procedures so that you won't necessarily end up in some of these potential pitfalls that these laws offer if you're not ahead of the game, so to speak. So with that, Jim, I will turn it over. Well, let me pause. I don't know if there's any questions, Alan or Jon, you think should be discussed before I turn it over to Jim?

Alan Tannenbaum, Esq.:

No, go ahead. Let's get on to the next section.

Jon Lemole, Esq.:

Well, okay. I was just going to say it bears noting that there are some privileged things that don't meet. It's in the statute, but there are some things that are protected from records inspection again-

Cindy Hill, Esq.:

Jon's absolutely correct.

Cindy Hill, Esq.:

That's a question you do need to consult with your association counsel, because the understanding of those protective records can actually be rather complex depending on what they are.

James "Jim" Turffs, Esq.:

All right, I'll jump in and start talking about written inquiries. For those of you who are HOA directors, you can take a nap for the next five minutes. This does not concern you. Written inquiries pertain only to condominiums. It's only a right guaranteed under 718, so we focus solely on condominiums here. So a written inquiry is basically an owner's attempt to ask you a question. They can send it to the board, it can contain multiple questions. By statute, it must be written, delivered to the board by certified mail, and the board will have 30 days to respond. The board can respond in a couple different ways. It can either respond by saying, "Here's the answer to your question," if the board happens to know that off the top of their heads. They can reply to the owner saying, "We've had to ask counsel for additional information or an opinion," so they get an extra 60 days from the date they receive or an extra 60 days. It's extended to 60 days from the date the board receives the request to respond with the attorney's opinion.

While I don't see it happen very often, the board can also ask for additional information or opinions from the Division of Condominiums. If they do that, you almost get a blank check in how long it takes you to respond because you only have to reply within 10 days of the division replying to your board's request for information. So it can essentially be anytime until the DBPR gets back to you, in which case you have 10 days to respond. It's important to remember that it has to be in certified mail because it starts that clock. Delivery to the association triggers that first 30 day or whether it's 60 days, whenever it is that clock starts to run from the date of delivery. Now if you violate that and you don't reply within the 30 days or whatever other deadlines you are, the penalty for the association is that you're risking waiving attorney's fees.

Even if there's a lawsuit about this written inquiry or those topics and you prevail, you may no longer be able to recover your attorney's fees if you did not comply with that 30 day, 60 day whatever applicable time limit, so that's the penalty there for that. Like with the right to speak at meetings or records requests, the board can adopt rules limiting access to written inquiries. The statutes even suggest, as an example, that the board can restrict written inquiries to once every 30 days. That's going to tie in here as we start to talk more about those disruptive owners who try to weaponize information requests to the board and just want to send written inquiries every day about different topics, just almost as a method of harassment.

So sometimes when you have owners like that or when that situation arises, the best tool might be to pass a rule that says, "You can only submit one written inquiry per unit for every 30 days." On the flip side of that, the board can also make it easier to submit written inquiries if that's what they want to do. You can say, "We're going to accept email written inquiries now," and it'll be from the date we receive the email that that clock starts to tick. Whether that's appropriate for your association is a board determination. In our experience, it's probably more common to restrict the amount of written inquiries you get rather than make it easier. But it just depends on how helpful the board wants to be in those circumstances. That's the brief rundown there of written inquiries. I don't know if anybody has particular questions about that, if they want me to focus on anything else?

Jon Lemole, Esq.:

I guess there could be some interpretation between what is a written inquiry versus what is a records request or if you get a combination of both, right?

Jon Lemole, Esq.:

When these requests come in, you would have to scrutinize them carefully because you may have different response times depending upon what is the nature of what's being asked.

James "Jim" Turffs, Esq.:

So yeah, official records inspections requests can come through email. That's been determined that an email is a written request for the purposes of official records. When it comes to written inquiries, those have to be done by certified mail unless you've allowed for some easier method of delivery. So when you get a certified letter, you know that there's something in there. As we get on later on when I come back to present further in this Smart Board today, I'm going to be talking a little bit about the duty to respond to emails and how that ties in. You may not always have to reply to an email, but you should always be reviewing it because there might be something in there that you're obligated to respond to. But written inquiries are pretty narrow in that regard because they do have to be via certified mail.

Alan Tannenbaum, Esq.:

All right, let's get on to board meetings.

Cindy Hill, Esq.:

The good news is this one is a much more brief topic than the official records one, which went on quite a while. Participation at board meetings, so starting with the Condominium Act 718. Owners have the right to speak at meetings on all designated agenda items subject to reasonable board rules, which can govern the frequency, duration and manner of unit owner statements. So again, you have some policy options here. Board-created policies to put some limitations on how and when owners can speak. So that's worth if you're having some disruptive meetings and even if you're not in anticipation that someday you might, getting with your council to create a board policy on that is a very good idea. Also under the Condominium Act, owners can record or video meetings. There's a lot of misunderstanding about that right. First of all, because rights to record people, rights to video people vary from state to state, so if somebody tells you, "Oh, in Nevada we can't do..."

"Okay, well that could be accurate. But we're in Florida and in Florida condominiums and the HOAs have a statutory right to record or video association meetings, and they don't have an obligation to say that they're doing it." But I do advise my associations at the beginning of meetings to ask that anyone who's recording to please let people know as a courtesy because it is a courtesy to let people know if they are being recorded. Condominiums are restricted by, there's a Florida Administrative Code rule as to what they can do for videoing in terms of rules for limiting it. They can require advanced notice to the board if someone wants to use, let's just call it like almost movie-making equipment. So if somebody wants to record something with their smartphone, they don't necessarily have to advise anyone. But if they want to bring in a bunch of equipment and speakers and things like that, you can't have a policy that requires that they give advanced notice of that and that they can't use disruptive equipment.

Not sure what that would be, but it certainly couldn't hurt to limit it, that they can require any equipment be assembled in advance to the meeting and they can also require that owners not move around the room while they're recording. That can potentially limit somebody from getting right up in someone's face, which is not best practices in terms of a professional business meeting. For the Homeowner Association Act, the restrictions are similar, that owners have a right to speak at meetings on all designated items. Again, subject to board rules which can govern the frequency, duration and manner of the statements, including having a sign-in sheet. That's another thing to consider. Sign-in sheets can not only reflect who was at a meeting in terms of having the specifics, but can also help for having an idea of how many people want to speak at the meeting at the time it opens, because again, some of these restrictions are intended to respect everyone's time.

I have seen owners get upset thinking that they've been cut off 'cause their opinions are such that they want to speak for 10 or 15 minutes. Every owner is entitled to their opinion. They're not necessarily entitled, though, to a long-winded version of their opinion that eats at the time of other members who are attending. They always have the right to contact the board and writing or email, but you can limit how much speaking they have at meetings. Again, just general considerations for both condos and homeowner associations for meetings, board policies can be very useful for particularly large communities. Because if you get a large turnout, you do need to have some time management so that everybody's not at a meeting for six hours, again, also for any association where there's some controversy or some disruptive owners. Going back to Alan's opening, it does seem that since COVID we've had more disruption than less, unfortunately, so that helps with that.

Also, a consideration to keep in mind is condominium and homeowner association meetings are private corporate meetings. So you can have a policy that limits who can attend meetings and who can speak. So for instance, you can state in a policy that tenants cannot attend a meeting, that the only persons who are not owners that can attend a meeting have to be invited or authorized by the board. But you can make some exceptions for spouses. There's a lot of room there to make clear as to who can attend and who cannot attend a meeting. Then finally, this will not be news to a lot of you, but for those who don't know, three minutes is the industry standard limitation on owner's right to speak on any particular agenda item. So while I was talking I was not monitoring the chat. So Jon, do you see anything that looks on point?

Jon Lemole, Esq.:

Yeah, and this is a question I think we get in our office frequently is, prior to COVID and the widespread use of Zoom, it was just standard practice you'd have a board meeting at a room or a library or on site at the cabana or something like that. After COVID, we've all gotten used to Zoom. So are there any bright guidelines about do meetings have to be physically in a space where owners and members can go to if they want to? Can you have just Zoom meetings for board meetings? How does that break down, Cindy?

Cindy Hill, Esq.:

There are ways to tweak governing documents to make some exceptions, so I can't give a blanket standard statement on that. But I can say that if in doubt have a place where owners can come and participate physically because that has been the requirement. The statutes have not been tweaked to really change that. There's some discretion in chapter 617 which governs not-for-profits, but I would say just if in doubt, have a location where owners can come physically and then if they want to attend by Zoom, they can.

Board directors have the right to attend by Zoom. They don't have to be present physically to have a board meeting. I can say that. But one of the biggest considerations of having membership meetings via Zoom is making sure that owners do have voting rights remotely, because if they don't, if they don't send a proxy in, they might not be able to vote at a meeting. So that actually gets more complex. We could spend another 20 minutes just on that, but I'm going to go with if in doubt, have a physical location for your meeting and make Zoom an option if you want to. You don't have to.

Alan Tannenbaum, Esq.:

... the adoption of rules and policies. Can you just spend a minute mechanically on how a board goes about adopting a rule or policy? Does it have to be published? How does that work generally?

Cindy Hill, Esq.:

Well, there could be requirements in an association's bylaws that go above and beyond the statutes, so I can't speak to that on a blanket answer. But I can say that generally, a board policy that is governing meetings or governing owner record requests is going to be one that a board can approve at a Dewey Notice Board Meeting where that's on the agenda. They don't have to mail out those policies in advance to owners, again, unless their bylaws have some restriction in there, they can be approved as standard board decisions are approved at every board meeting.

Alan Tannenbaum, Esq.:

Would it generally then be a good idea to publish those after they're adopted?

Cindy Hill, Esq.:

Oh, yeah. Yeah, sorry I didn't get to the second part of your question. Definitely you want to make those available where your governing documents are available because the purpose of the policies is not just to put some enforcement on what owners can do, but also to make sure that your owners feel that they understand that there's a process and that they can follow it and manage expectations that way, so absolutely.

Jon Lemole, Esq.:

There's a couple of questions in the chat that all seem to be related to you have that the owner at the meeting who either exceeds the three-minute rule or becomes disruptive at the meeting, what are the options of the board for that? Maybe Jim is going to cover this a little bit in another section, but you've got that disruptive owner at the meeting who is exceeding whatever the policy is. What do you do about that? I don't know that there's an easy answer. I know that some boards, especially in South Florida, have had police sheriffs at their meetings from time to time.

Cindy Hill, Esq.:

That's part of what I have on my final topic is to just address that issue. You're right, that is one of the options is to call the police or hire an off-duty police officer. Going back to recording, in my experience, another option is to record meetings 'cause sometimes, not always, but sometimes people act a little better if they think they're being recorded.

James "Jim" Turffs, Esq.:

Yeah, there we go. All right, so this one's a little bit bigger. Written inquiries, there's only so much to say about the topic. The statutes tell you what you can and can't do, but as we're now moving into a more tech-savvy world where even what are now your older owners are becoming more familiar with the technology, we're starting to have to deal with online communications, online groups, all that fun stuff, which historically wasn't really an issue. Of course, the law and managed community law especially is just slow to evolve, but we're getting there now. So online communications in a lot of different forms are starting to become more prevalent and we're starting to sift through those specific issues as they come up in community management. So like I was saying when Jon asked earlier, my first big point is that by and large, directors have no obligation to respond to an owner's nasty emails.

So we're starting to get into more specifically in online communications, harassment and weaponization of online platforms and those common pitfalls here. So again, a CAM may have a special duty to respond to emails as they come in regardless of the content. They may have a company policy, they have a Florida Administrative Code, which may require some answers. But directors are there to do their job, and they're there to respond to reasonable business-related emails and things like that. Once an owner gets out of hand, and if they just start sending emails like, "Oh, you're the worst director, you're terrible. You've done this wrong, you've done this wrong," you don't need to reply to that. In fact, you're usually better off not replying to those types of emails, and just don't feed the fire. Let that angry owner vent their rage. Don't push back, and just let it go when you can.

But the point is, they may sneak information into those nasty emails that you do need to reply to. If somebody says, "Hey, you're the worst director ever. You're a terrible person. By the way, I need a reasonable accommodation for my disability," you're going to have to reply to that portion of the email. You're going to have to identify the reasonable accommodation request and handle things like that. So we have clients who come to us and say, "Oh, that person is just out there to harass us. They won't read their emails anymore, don't read their letters, just put them in the circular file and be done with it." We can't do that. We have to at least read those communications as they come in because there may be important content in there and we can't just ignore it. We ignore it and say there was a reasonable accommodation request buried in all of the other, we'll call it nonsense, you could just be opening yourselves up to liability.

So we try to avoid that, and we do have to get in there. So be careful when your board is dealing with a particularly harassing or intimidating owner. Don't let them sneak something past you just because you're used to their bad behavior. So now we're also transitioning just aside from those emails, which obviously email has become so prevalent now and everybody has to deal with some nasty emails from time to time, but we're also getting into social media now. Some associations are starting their own social media sites, whether that's a Facebook group or a Nextdoor style app, there can be an official representation. The board can utilize those assets effectively. You can create friendly groups, but the question is, what do you do when an owner starts creating a Facebook group or a website or something that's antagonistic to the board? Again, we're talking about disgruntled owners here.

We know they come up, we have to know how to handle them, and sometimes they want to post that website that says, "X HOA is the worst," and things like that. Now there are limits that have to be observed. Owners have the first amendment right to express their opinion. They're allowed to go out and say, "You're the worst association ever," and they're allowed to tell you why they think that. What they can't do is pose as the association and say, "Oh, I am the official association website and we're saying this, this and that." That can't be done. There's a trademark confusion issue. There's usually something in your governing documents that says, "Only directors can represent the association in an official capacity." So there are a lot of things wrong with an owner attempting to supplant the association in generating a website or a social media group.

That aside, owners may be able to create private groups amongst themselves to discuss their neighborhood. If block seven of your HOA decides to get together and start to block seven Facebook group, they can do that. To some limited degree, they may even be able to share association records in that way. Cindy, you already talked about how official records are records of a private corporation. They're not meant for public consumption. But if there is a way to gate-keep that sort of community, if there is a Facebook group and the only members of that group are members of the association as well, you may be able to share, say, meeting minutes with those other members of the group. Again, express your opinion about those as an owner.

What they can't do and should be discouraged from doing is putting a public website saying, "These are the accounting records of the association for the world to see. This is how bad they are." That shouldn't be done. Now you're publishing a private corporate record on a public forum, and you're violating some standards there. We certainly have issued cease and desist letters for that sort of behavior in the past, and it usually takes care of it. But there have been lawsuits out there dealing with owners who have put up websites disclosing far more than they should or trying to take over for the association and hold themselves out as the official association. So those are things we have precedent for and we know we can address as they come up.

So the other concerns that we see coming around very often are just, it's usually about bad-mouthing, and we have a lot of directors come back and saying, "Well, they've said this about me. They have said this about our association. It's not true. It's wrong. Tell them to stop," and sometimes we just can't do that. Again, if it's blatantly wrong, if it's something that rises to the level of defamation in the state of Florida, there might be some actionability there. But by and large, as long as they're not outright lying about you and they make it clear that it's their opinion, an owner is allowed to say nasty things. So again, I harken back to my advice about emails. If an owner is just saying something nasty about you or nasty about the association, you don't always have to reply. Let them vent. Let them get their stuff out of the way. It will go away. It will blow over.

If you start pushing back and you start going, "That's not true. You're a terrible owner, you're a terrible person for saying this," you're just going to start a war that may never end. So exercise some reasonable discretion there. Reply to what you absolutely have to reply. If something is violating your governing documents or the statutes, contact your association's council. We can evaluate what the next step is, whether that's a cease and desist letter, whether there is something actionable there or whether there's just nothing you can do about it, let us know and we'll provide you with that sort of guidance. So we'll see what else happens with social media and online communications as time progresses. Obviously, it's going to become more and more prevalent, and I'm sure we're going to find new ways to make director's lives difficult through social media and especially CAM's lives difficult through social media. But for now, these are the somewhat more frequent issues that we're seeing. So that's where I am on online communications there. Any questions coming through that need to be addressed?

Jon Lemole, Esq.:

There was a question, Jim. One of the points you made is that a member shouldn't be allowed to post up corporate documents for all the world to see, and that would certainly be subject to a cease and desist letter and maybe even further enforcement action against that member. But let's suppose you have a situation where there's maybe a private Facebook group that only constitutes the membership or a portion of the membership of the community. Is there some issue with disseminating records that an owner may have gotten through a records request in that kind of a forum to other owners within the community as long as it's limited to the other owners? I would think that there probably isn't, but...

James "Jim" Turffs, Esq.:

Yeah, as long as they're members, they're going to be entitled to view that information. It is about the differentiation between who's receiving it. Is it just members of the association or is it open to the public at large? And membership almost always equates to ownership. So if somebody's not an owner in your association, they should not be looking at your corporate records or corporate documents. They're not entitled to see that under governing laws or the statutes. The statutes are very clear that it's an owner or in some instances it can be a representative of an owner who are entitled to request official records and things like that, but it shouldn't just be published. It's not meant to be a public record in that sense, so yeah.

James "Jim" Turffs, Esq.:

If you have a completely closed group, and that's a situation that's come up recently where there has been a director saying, "Hey, there's this group over there, things are being published, make them stop," and the questions we have to ask are, "Well, is it a public group? Is it a private group? If it's a private group who's allowed to join?" Sometimes those questions answer themselves in a way that says, "This is a private dissemination of information and sometimes it's public, and what we do depends on that."

James "Jim" Turffs, Esq.:

My recommendation is not to allow anonymous posts, but sometimes there's just no way to stop it. If it's an association controlled website, they may have the right to take down anonymous posts, they may have the right to limit anonymous posts and things like that. I would advise maybe a case-by-case analysis of that sort of thing. Sometimes it's worth it, sometimes it's not. Sometimes getting rid of just an impolite post causes more problems than just letting it go. So I would be hesitant to issue a hard-and-fast rule about that other than to say a lot of this communication stuff is going to be context-driven. So if there's an anonymous post or something and you really don't know what to do with it, ask your lawyers and we'll at least make up an answer that sounds reasonable.

Alan Tannenbaum, Esq.:

Let's move to our last section, Jon. I think Cindy is going to handle physical intimidation and harassment.

Cindy Hill, Esq.:

Well, I'm going to do my best to give you some guidance. I'm looking at the chat answering some of them as I can, and I'm seeing a lot of frustration with people acting badly. I just want to, before I get into this last part of the presentation, say that realistically, there's only so much you can do. Some people are just bad players, and I have a phrase that I like to use, don't reward bad behavior. Sometimes that's really all you can do is not... to the extent people are looking for a rise or looking for a confrontation. Just do your best to just not give them that because community associations are not police. They don't have government authority. They people have a right to their opinion. So I hear the frustrations. I just want to be full transparent along the lines of your association council cannot solve all these bigger societal problems.

Okay, so getting to physical intimidation and harassment. Physical intimidation, you really want to try to do your best to avoid that. Again, we don't want to have to call the police to a meeting. You don't want to have people who get injured, who get hurt. But keep in mind, to the extent that owners come to you and say, or the board comes to management and says, "Somebody got in my face, someone threatened me," it is not the role of the association to serve as the police. If someone feels physically threatened in the community, they should contact the police and make a report or do what they need to do to protect themselves physically. With the exception of larger communities, big buildings that actually have security guards, majority of the associations out there do not have any police power.

So outside meetings, again, the advice should always be, and I tell a lot of my associations just even try to put this in a policy or try to put it out there on the website that if anyone feels threatened in the community to call the police. Now, it came up earlier what happens if you have a meeting where somebody won't stop talking? If you have a meeting where people are starting to get up in people's faces, it's looking like you're starting to feel like maybe you're in a disruptive bar, rather than in a professional corporate meeting, the association can hire off-duty police officers to attend meetings. Sometimes that helps with someone who might normally be more aggressive knowing that there is someone in the room who is giving them the stink eye for their behavior. You can certainly end a meeting if it becomes disruptive. You can end it and continue it to another time, or you can just flat out end it and then re-notice a meeting.

If you can't conduct business because someone is so disruptive that the meeting can't take place, you might as well just end it. Then that does send a message to the disruptive people that you're not going to let them go on and on and on. One of the questions that came up in the chat is, could we bar someone from attending a meeting? Well, that's a tough thing to do, but potentially you could. If someone has made threats of violence, if someone has repeatedly disrupted a meeting, you have some options there to discuss with your counsel in terms of advising them that they no longer have the right to attend a meeting or speak at a meeting is applicable because they are acting in a matter that is hopefully in disregard of any civility and are a safety threat to the members of the meeting.

So harassment, that's a loaded term. People tend to claim they're being harassed if they just don't like maybe the message they're getting. So there's a difference between not liking someone's message and harassment along the lines of do you have an owner who's sending you, I don't know, 15 emails a day as a board director? As Jim said, you don't have any obligation to respond to those. But when it gets to emails generally, but when it gets to be your cell phone's dinging off 15 times a day 'cause somebody who's for whatever reason decided to focus their concentration on the board, you have some options there in terms of labeling such contacting or maybe even calling repeatedly as harassment and letting an owner know that their emails will not be responded to board directors, that they have to send everything to management, because they have abused professional courtesy to block them from the phone.

Again, have management be the one, and I'm sorry managers, but at least managers are paid, board volunteers are not, have the management company be the direct contact for some of these folks. We've even had associations who made our firm the direct contact for some folks because they were just unwieldy to deal with, otherwise. That's an expensive option, but sometimes in the interest of saving sanity of board members and managers, it can be an option. We've had to tell owners they could not harass managers. That has happened as well. So I hate to say there aren't easy answers for these, but I hope I've given you some things to think about and go to your association council with if you are having scenarios where these problems are occurring.

Jon Lemole, Esq.:

Is there some line where there's the opportunity, let's say for the association to bring some sort of covenant enforcement action against an owner? Is there something to enforce against an owner who is repeatedly harassing other members, harassing the board, creating disruptive or performing disruptive behavior in the community? Does there ever get a point where it rises to that level that it is a violation somehow of the governing documents that is enforceable?

Cindy Hill, Esq.:

It can be. Again, going back to if you have some rules in your bylaws or if you have a policy about meeting behavior, it can be punishable. If someone is absolutely disrupting in a meeting on a repeated basis and not following clear rules and guidelines, safety is always going to be a big issue. Again, if you have someone who's presenting a safety problem in the community, I will let Jim maybe follow up on these questions as well since he does litigation, but there are some potential enforcement actions in court for people who present a safety issue to the association. So it's really going to depend on what rights are in the documents and how bad the problem is. It's going to be a combination. Jim, did you want to weigh in on that?

James "Jim" Turffs, Esq.:

Yeah, and again, the caveat here is everything is context-based. What exactly have they done? Where have they done it? Who was around? But almost every declaration I've ever seen has a nuisance provision, which is a pretty broad catch-all for a lot of things. A nuisance as it's defined in most declarations and commonly throughout our area of law is anything that's going to disrupt your neighbors or another owner's right to quiet use and enjoyment of their land. So if you're doing something that truly interferes with their ability to live peacefully to some extent, yeah, we can probably take some action. There's a fine line, though, because we don't want associations to become the security guard.

The association doesn't necessarily have a duty to protect its members. Some declarations do. I've seen ones that absolutely say, "The association will provide security and do this, this, and that." But with that responsibility comes liability, and we don't really want the associations to become the police. So if there's a disruption that comes to the level of violence or something along those lines, we want to get the authorities involved. Otherwise, the best we usually want to do is send violation letters. There's usually some version of some provision within the declaration that's being violated by incivility or angry shouting or things like that. But there may be limits on what the association can do when it comes to disruption as it would be.

Alan Tannenbaum, Esq.:

We haven't really talked about defamatory statements. So if an owner either online or on a website is publishing statements that may be defamatory about particular board members or the board as a whole, do you think it's appropriate for association funds to be spent to deal with maybe defamatory statements? Or is that something that would be personal to a individual board member who's being defamed?

James "Jim" Turffs, Esq.:

There have been cases in which associations have had to prosecute defamation cases and they have won. Have I ever seen one that I thought was a good idea? No. The chances of recovering and defamation anything are extremely small. They're hard cases to prove. There's always the opinion exception to the defamation cause of action, which says, like I intimated earlier, owners have the right to express their opinions. So in order for defamation to really fly, there has to be a patently false statement that they knew was false when they said it, was published to a third party, which means anybody other than the association and themselves, so on a website, you probably have that per se, and then there have to be damages. That's the tricky part is reputational damage for an association, how do you prove that? So a lot of defamation cases will go to trial and they'll come back with a dollar verdict and just to prove a point that yes, defamation occurred. So usually not a great idea.

Now the cases where we do see defamation being useful and a tool worth expenses, when you do have that owner who puts up their official, "I'm the association," website where they're posing as the association and they start doing things that intentionally interfere with your business relationships. Your landscaper says, "I saw what you said on your website, I don't want to work for you anymore." Those are the type of things where you can sort of start to get involved with defamation. But otherwise, what we see most common there is an owner talking about an individual director. When that happens, we actually want those individual directors to retain private counsel because it's their reputation at hand. As counsel, we represent the association, and generally, our purview doesn't extend to those individual directors. So if an owner is going out there and saying, "Hey, director John Smith is just this jerk, he killed my cat yesterday and you should never work with him," well, all right, if that's untrue, then that director probably has grounds to go out and address that with the owner privately.

Alan Tannenbaum, Esq.:

It would seem that underlying a lot of this is really the disruption of the normal business practices and operation of the association. We've had associations where they've had two management agents leave because that a particular owner or a few owners were making life intolerable for the manager. They'd show up even at the office on a daily basis with some sort of physical intimidation. We've had a couple of instances where we're maybe now on a third in management agent or a management company decides to fire the association because it just doesn't want to put its employees in harm's way, and that's when it would appear there's really a need for the association to take action to really protect its business operation from being really negatively affected. Maybe even interference with contract would be a cause of action that would be possible under those circumstances. So that's where some action is needed. Is there questions that any of you are saying?

Cindy Hill, Esq.:

Well, Alan, I'd like to address, I've seen a couple of questions about what to do if the board member's a bad player, so to speak, that if you have a board member who's disruptive, who's making demands, who's not necessarily being physically threatening, but making it hard for the board to conduct their business, that's a really tough one, because board directors have more authority to. Obviously, they have a right to speak at board meetings. It's not limited in the way that owners speak. Board members have a right to ask questions at board meetings and be part of decisions in a way that owners are more observers. So when you have a bad player board director, it's really a tough situation.

One thing to keep in mind, though, is to the extent that board members are elected by the owners, they can also be unelected, so to speak, or recalled by the owners. So if it is obvious to enough owners in your association that you have a board member who's more disruptive and less helpful and could be replaced by someone who'd be a better board member, if you can get a majority of the owners to agree to a recall, that board member can be removed by basically a reverse election. That's not necessarily the best option, but it is very difficult when you have board members who are disrupting meetings because they do have rights beyond what the owners have, generally.

Alan Tannenbaum, Esq.:

Yeah. We had one association where somebody running for office basically said that if the current board didn't resign that they were going to file a lawsuit against them and take all their assets. We saw a couple of current board members saying, "Look, this is a volunteer position. I don't need this harassment. I'm certainly not going to put my asset picture at risk," and they decided to resign from the board, allowing this challenger to basically take control of the board, which was unfortunate. But a lot of particular situations are very, very difficult to navigate. So we've hit the noon hour. There's a lot of questions on business records maybe that we need an entire session on that that I see and some more on requesting association documents. But I think that we have basically covered most of the questions that we're able to answer in this session. So we're going to say goodbye for the day. Thanks for attending. Hope that it was helpful. You've pointed out some additional topics that we need to take on, and we will see you next month.