Q: How can condominium associations handle a unit owner who frequently threatens lawsuits against the association and its board members, especially when these actions seem frivolous and disrupt our ability to manage the community? (S.M., via e-mail)
A: Florida’s courts have called condominium associations “democratic sub-societies.” Democracy is messy.
While many issues can become controversial, I have found that as long as people feel that they have been given the opportunity to express their views in a mutually respectful manner, they will live with a decision or action. While they may not like it or agree, they will move on.
Unfortunately, some people are simply unable or unwilling to do so. My general advice when dealing with someone who is constantly complaining, threatening, and criticizing frivolous matters is to ignore them to the extent legally possible. Admittedly, that is easier said than done.
I believe every association should have a set of policies and procedures that set forth basic owner rights to be exercised under the statutes and the procedures to be followed when doing so. These include the right to inspect official records, procedures for making official “inquiries” to the association, and rules of conduct for board and owner meetings. Associations without such policies are often at a disadvantage when dealing with people who may be more interested in the fight than what they are fighting about.
E-mail, text messaging, and social media, while revolutionizing human communication, are often at the root of these fractured relationships. In general, there is no legal obligation to respond to owner emails and text messages, and in many cases, simply ignoring them is the best tactic.
It is important to involve the association’s legal counsel. Every owner, regardless of their intentions and how nicely (or not-so-nicely) they are expressed, has a core set of legal rights under the statute. Slipping up in honoring these rights can cause a significant shift in the ability to manage difficult people.
It is also important to bring the association’s insurance agent into the matter. Most threats of lawsuits against board members personally are “hot air.” Under Florida law, directors are generally not personally liable for acts or omissions of the association if made in good faith and based on reasonable grounds unless the director realizes personal gain, violates a criminal law, or acts in a reckless manner.
However, lawsuits are filed against directors and officers with some frequency. They are often covered by “D&O” (directors and officers) liability insurance, or some other policy. It is therefore very important to understand when a matter needs to be reported to an insurer, which is an issue to discuss with the insurance agent. Ensuring that the “indemnification” provisions of the condominium documents are as broad as permitted by law is also an important self-protection measure.
While “striking back” at perceived attacks is a natural human reaction, it is rarely a good strategy in managing a problematic relationship. For example, Section 718.1224 of the Florida Condominium Act generally prohibits condominium associations from filing “SLAPP” (Strategic Lawsuits Against Public Participation) suits against unit owners “without merit and solely because such condominium unit owner has exercised the right to instruct his or her representatives or the right to petition for redress of grievances before the condominium association or the various governmental entities of this state.”
The same section of the statute also prohibits retaliation against owners, including the threat of lawsuits, if an owner has acted “in good faith and not for any improper purposes, such as to harass or to cause unnecessary delay or for frivolous purposes or needless increase in the cost of litigation.” Examples of conduct protected against retaliation include organizing unit owner groups, complaints to the association about compliance with the law, and making public statements critical of the operation or management of the association. Violations of this statute can result in an award of attorney’s fees and “treble damages” (three times actual damages).
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.