Can an association board sue a member for defamation?
Steven R. Braten
06 March 2017
Can an Association sue a member of the Association for defaming the
Board, or can only the individual board member make the claim?
What do you suggest an association due to stop harassment from a member
of the community, such as abusive e-blasts to the community?
These are some great questions. The answers, however, are not simple.
First, it is important to state at the outset that owners/members
living in community associations are often under the misconception that
they may criticize a board’s conduct on blog sites, or social media
forums, including community Facebook pages without regard to the
content. This is simply not the case.
Many association members believe they have a “First Amendment” right to
express their opinions regarding decisions their board has made or are
anticipated to make at a future meeting. This is simply not the case.
Assuming the First Amendment is applicable (which can be the subject of
a whole separate Q&A!), it does not protect all speech. It does
not, for example, protect speech that leads to illegal activity and/or
imminent violence, obscenity, defamation, and libel. The First
Amendment also does not protect speakers from liability for the
foreseeable consequences of their speech.
Defamation constitutes an injury to reputation; the injury may occur by
means of libel (written) or slander (spoken). Liability for defamation
can extend to those who publish the defamatory remarks of others. The
generic elements of defamation are:
(1) false statement that is expressly implied to be factual
(statements are not defamatory if they are true); (2) intentionally
published to a third party. One of the elements of the tort of
defamation is "publication;" (3) no privilege applies; (4) the person
defamed suffers damage.
In general, each time the defamatory statement is communicated to a
third person who understands its defamatory meaning as applied to the
injured person (soon to be a plaintiff), the statement is said to have
been "published," although a written dissemination is not required.
Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed.
The essential condition of recovery for defamation is the existence of
falsehood. Because the statement must contain a provable falsehood,
courts distinguish between statements of fact and statements of opinion
for purposes of defamation liability. Although statements of fact may
be actionable as libel, statements of opinion are not actionable.
An association can sue homeowners for defaming directors if it can be
shown that the defamation is related to how the director performed
his/her duties and responsibilities so as to have a natural tendency to
affect the corporation disadvantageously in its business. If the
ostensibly defamatory statements cannot be reasonably interpreted as
having been made against the association, the association has no cause
of action for defamation. Rather, the action is personal to the
As you can see, this is a very complicated issue.
So, in the case of a member sending defamatory e-blasts to other
members regarding the board as a whole or directed to the association
as an entity, your association may have a cause of action against this
member for defamation.
This brings us to your next question, “what else can your Association to do.”
One option; is to adopt rules and regulations that establish a certain
minimum level of behavior, or code of conduct that all members must
Remember, your association is a private corporation, not a governmental
entity. In 1987, the Florida Supreme Court held, in Quail Creek POA v.
Hunter, that neither a homeowners’ association’s recordation of its
covenants in the public records, nor the enforcement of its covenants
in state court, created a sufficient nexus to evidence “state action”
such that the First and Fourteenth Amendment would apply.
The Florida Supreme Court has also held that individuals give up
certain rights to live in a condominium, which would equally apply to
other deed restricted communities, such as a homeowners and property
Therefore, rules and regulations that prohibit defamatory speech
directed at the association, a board member, the board in its entirety,
or another member or management may be appropriate.
Violation of such rules could result in fines being imposed against the
person who engaged in the behavior in question. Be sure to consult your
association’s legal counsel before adopting any such rules or
regulations. Preferably, your association’s legal counsel should draft
such a policy if appropriate for your community.
Steven R. Braten Esq., is Managing Partner, Palm Beach of the Law Firm Goede, Adamczyk, DeBoest & Cross, PLLC
chapter previous next