Q: Can an owner of a condominium association exercise free speech to protest issues with their condominium association? (J.D., via e-mail)
A: That is a complicated legal question. The First Amendment to the United States Constitution only prohibits the federal government from abridging free speech rights. That protection is extended to the States and their various political subdivisions by the Fourteenth Amendment.
A condominium association is not an arm of the federal or state government, so its actions on their face do not typically invoke constitutional protections. However, the case decisions on this topic are not consistent and it is fair to say this is not a settled area of the law.
For example, one Florida appeals court ruled that a “For Sale” yard sign prohibition in the covenants of a Naples community did not involve “free speech” (technically “commercial speech”) because the association is not an arm of government. In constitutional law lingo, there was no “state action” involved. Conversely, another appeals court in Florida ruled that a trial court could not enjoin (prohibit) an owner from negative postings on social media about the board of directors, even though such postings were alleged to be in breach of a settlement agreement between the parties.
The reach of constitutional rights in associations is one that will probably develop further over time. From the ability to regulate political yard signs and partisan flags, to whether or how an association can restrict firearms, these are big issues.
The Florida Legislature did address a couple related issues during its most recent Session. Effective July 1, 2024, Section 718.1224 of the Florida Condominium Act now protects unit owners from “retaliation” by associations for making public statements critical of its operation or management, as long as the owner acts in good faith and without improper motives. Of course, what is “good faith” or an “improper motive” is likely to be seen differently in the eyes of the beholders.
The 2024 amendments to the condominium statute also made it unlawful for an association to sue for defamation (libel or slander). Similarly, the law now provides that a defamation action brought by an individual officer or director cannot be funded by the association.
For decades, Section 718.123 of the Florida Condominium Act has granted owners the right to peacefully assemble or invite public officials to speak in common areas. While an association can regulate this conduct, such regulation cannot be unreasonable. Similarly, courts have overturned injunctions that prohibited peaceful picketing.
However, free speech is not always free. While the courts have shown a lack of tolerance for “prior restraints” (stopping someone from speaking before they do), many of the case decisions also make it clear that unprotected speech can result in monetary liability. Tortious conduct such as defamation, interference with advantageous contractual relationships, and disparagement can carry a hefty price tag.
Q: Are there specific guidelines or a reliable source that outlines the proper structure and formatting for meeting minutes of a homeowners’ association board? (G.H., via e-mail)
A: The law only requires that minutes be in writing and reflect the vote of each director on motions before the board whether in favor, opposed, or abstaining. Procedural resources like Robert’s Rules of Order offer some guidance but the courts have stated that Roberts is not legally binding unless specifically incorporated into the bylaws.
In my view, minutes should reflect what was “done,” not what was “said.” I believe minutes should reflect: the date, time, and place of the meeting; who was in attendance and in what manner (in person or remotely); confirmation that lawful notice was given; of notation that reports were given if applicable; the exact wording of any motion made, with notation of the person who made and seconded the motion; a notation that discussion ensued; and the outcome of the vote, listing how each director voted. The minutes should also reflect the time of adjournment of the meeting.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.