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Watch Your Mouth Slander and Harassment Are No Joke

 When you were little, your mother might have told you, “If you don’t have something nice to say, don’t say anything at all.”  

 Momma was no fool. That was sound advice then, and it's even smarter in today’s litigious world, where what you say really can be held against you in a court  of law. Crossing the line from what you might consider free speech or personal  opinion into libel or harassment territory can cause not only serious acrimony  among neighbors, but it can result in expensive legal consequences as well.  

 Dirty Words

 We all have occasional differences of opinion with our neighbors—and sometimes we might even dislike them outright. That being said, it’s one thing to call your neighbor, board president or manager a jerk, but it’s an entirely different issue to accuse him or her of being a criminal, or a  sexual predator, and then distribute flyers to that effect under the doors of  everyone in your building.  

 “We have had instances where a shareholder reported a board member to Child  Services in connection with an alleged—and wholly meritless—child abuse charge," says Jeffrey S. Reich, Esq. of the law firm of Wolf  Haldenstein Adler Freeman & Herz LLP in New York City. "We've had board candidates who have raised others'  past criminal conduct, and an instance where one board member accused another  on a public blog of battering his wife.”  

 All of the cases mentioned by Reich ended up in a courtroom, with accusations  that the person who made the allegations slandered, libeled, or defamed the  other person. Did they merely state—or could they state—what they honestly believed was true? Before that’s answered, a little legalese 101 is needed.  

 Legal 101

 “Defamation is the generic term for false written and verbal statements that  cause harm one way or another to a person,” says Marshall N. Dickler of the law firm of Dickler Kahn Slowikowski & Zavell, Ltd., in Arlington Heights. “Libel is a written defamation while slander is usually considered to be an oral  defamation. There can be other types, but that’s the generic term.”  

 However, if what someone is saying about another is true, then indeed it may set  that person free (“and the truth shall set you free”) from any legal repercussions. For example, one board member wasn’t seeing eye to eye with another board member, a blogger. The blogger was  threatening to post that the board member had been arrested for assaulting his  girlfriend, so he consulted Reich to try and prevent it.  

 “I asked him if there was an incident and he said yes,” says Reich. “As a result, there wasn’t anything we could do. It was the truth and truth is an absolute defense to any  defamation claim.”  

 In today’s digital world where thoughts are tweeted, put on Facebook or blogged almost  before they are even finished, attorneys are seeing more accusation of  defamation cases. “More and more society is less civil,” says Reich. “When you are dealing with the Internet and when people hide behind the keyboard  they are brave. When people are dealing with boards, it can be very emotional.  This is your home and there’s a lot of emotion attached to that.”  

 But if someone can prove that they have been defamed and there are damages, the  results can be costly for the accused. “If you were treasurer of the association and someone said that you were a  mini-Madoff and it wasn’t true and that comment put you out of business, you could prove those damages,” says Reich. “Depending on the size of your business, the person who did the defaming can end  up paying millions.”  

 In some defamation per se cases, the damages do not even have to be proven.  James A. Slowikowski, who is also with Dickler Kahn Slowikowski & Zavell, Ltd., explains that a defamation per se presumes that the defamation  caused the person harm, so that actual damages from the false statement doesn’t have to be proved. However, the false statement must meet various criteria: it  must be a statement that the person who is being defamed committed a crime;  words that the person is infected with a loathsome, communicable disease; words  that impute an inability to perform a lack of integrity regarding the person’s office or employment duties; and words that prejudice the person or allege a  lack of ability in his or her trade, profession or business.  

 “If the false statement is not one of these four things, actual damages caused by  the false statement of fact must be proved,” says Slowikowski. “It cannot be opinion. This makes it difficult to prove a defamation case.”  

 Dickler explains however, that opinions can be protected and keep the person out  of litigation. “If someone says, ‘It looks like money is missing and in my opinion it looks like John Smith, the  treasurer, took it,’ that’s not defamation, but if someone says, ‘Money has been taken and John Smith took it,’ that can be defamation.”  

 For example, one board member didn’t like that a special assessment was made to pay for repairs of serious  structural issues. “One resident put a sign in their car that the management stinks and fire  management,” says Dickler. “We can do nothing—it’s an opinion, but you’re not going to shut the person up. Unless it causes harm to your business, it’s someone expressing themselves.”  

 But what are the legal ramifications of posting grievances on a public message  or comment board run by a particular building or community? What about during  meetings, or in leaflets or flyers circulated around a building? There are  other possible considerations when it comes to defamation, including common  interest theory, where unit owners or shareholders are sharing information  about a member with others in the same association.  

 “For example, a board owner has accused a unit owner of not paying his common  charges and told other people in the building,” says Reich. “The charges were dismissed because if the person accused is a unit owner or  shareholder and are sharing information about a member. The ‘common interest theory,’ is where common people would share information they see as important.”  

 According to Charles "Chuck" A. LeMoine, Attorney at Law at Dykema Gossett PLLC  in Chicago, every condo association has specific rules that would govern the  action of condo owners and those may or may not apply to what’s being posted. “The condo board has the ability to pass rules and could approve a rule that  would prohibit certain conduct,” he says. “However, the board cannot take away an owner’s First Amendment right of free speech. Not all speech is protected by the constitution, but it would depend on the type  of speech, the context and any potential limitation by the board.”  

 LeMoine recently had one case where the purchaser of a new condo unit accused  the developer of receiving kickbacks from an Internet supplier and posted these  comments on the building listserv site. “The developer was prepared to sue the owner for libel when the owner publicly  retracted the statement and the building owner published new limitations for  the posting of information on the site going forward,” he says. “Too many people still have not learned to keep their mouth shut and watch what  they say in cyberspace.”  

 If a resident is stating things about a developer or management company, it’s common that the company will file a lawsuit about the resident just to try to  quiet them. However, there are laws protecting residents from these type of  SLAPP lawsuits. SLAPP stands for a “strategic lawsuit against public participation” and is basically a lawsuit that is intended to censor, intimidate and silence  critics by burdening them with the cost of a legal defense until they abandon  their criticism or opposition.  

 In the Illinois case of Shoreline Towers Condominium Association v. Gassman, the  condo association had rules prohibiting attaching anything to the exterior of  apartment doors in the high rise building. The unit owner, being Jewish, placed a mezuzah outside her door which spawned  other lawsuits. The association claimed damages, alleging that the unit owner defamed the condo  board and a condo board member, interfered with its business and intentionally  inflicted emotional distress, etc. by statements the owner allegedly made to a  newspaper and others.  

 “The Appellate Court upheld the dismissal of the lawsuit, finding that it was a  SLAPP suit prohibited by the Citizen Participation Act (the SLAPP suit law) and  the owner was awarded her attorney fees,” says Slowikowski. “For example, if someone doesn’t want something rezoned, a developer can’t just file a suit to shut people up, saying that they are defaming him and his  business. Joe Smith doesn’t have money so when he gets sued, he can’t fight a court battle. The court can use this law to throw it out and Smith can  get his legal fees back.”  

 How then do you handle them?

 If a board member or resident is on the receiving end of a potential defamation,  there are several things they can do:  

 Respond: “If someone writes something on a blog, for example, publish a response and show  how it’s wrong,” says Dickler.  

 Know what’s happening: Often, people confuse defamation with harassment. If a board or  manager is harassing you with letters and voicemails, this may not be  defamation depending on what is said and where it’s posted. Harassment is "repeated, intrusive or unwanted acts, words or gestures  that are intended to adversely affect the safety, security or privacy of  another, regardless of the relationship between the actor and the intended  target."  

 Go to an attorney: If a board member, manager, or resident of a co-op or condo  community feels they're being slandered, defamed, or harassed by another person  in the building, give an attorney the information and see if there is any  claim. “There may be a cease and desist letter sent,” says Reich. “Property manager wouldn’t do anything and doesn’t have legal training.”  

 Let it slide: “In a case where the sitting board member said the board was saying vicious  things about the sitting board, we convinced the sitting board to rise above  the mudslinging and felt it wasn’t necessary to hit back,” says Reich.  

 If you’re the one tempted to post something you think is true, think twice. “I can’t tell you how many times someone says to me they can prove something and they  couldn’t,” says Dickler.  

 Even forwarding a damaging email that you received to third parties can get you  in as much hot water as if you had written it yourself.  

 For example, a homeowner discovers a new message from a neighbor in her personal  email inbox. The message’s subject is embarrassing, personal matter of another neighbor, which the  homeowner finds humorous. She forwards the message to a number of her contacts  and posts the entry to her social media accounts (such as on her Facebook  wall.)  

 “Although the homeowner only posted the item, making no independent comments of  her own, she soon finds herself a defendant (along with the original author of  the email) against a lawsuit for libel and defamation of character after the  email’s subject matter proved to be false,” says Jonathan H.F. Crystal, executive vice president, Frank Crystal & Company in New York.  

 After the homeowner's personal e-mail and computer files were subpoenaed, she is  eventually dismissed from the lawsuit but not before incurring over $75,000 in  legal fees and expenses. A very costly lesson, indeed.  

 So take Momma’s words to heart: Be careful what you say before you say it or you may regret it  in the long run.  

 Lisa Iannucci is a New York-based freelance writer and a frequent contributor to  The Chicagoland Cooperator.

 

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7 Comments

  • If a president of the board makes alligations that you swayed and forced a elderly unit owner do something against her will and you are a Nurse and said that is elder abuse and she can report you but the allegations were false He/She also used profanity and intimidating body language and threw me out of the meeting leaving the others board members behind not asking them to leave either
  • I am an 80 years old (Jan !!) new Board President. A 65 year resident recently used some very abusive language to me and sent a slanderous E-Mail to all residents. What can I do to stop it?
  • Sounds familiar ! We have had to have attorney guidance in certain situations . Our many rules include a generalized clause regarding “noxious behavior”. Our Board members and the community have received hate filled emails also. In response warnings were sent to the community about mass distribution of personal messages being a misuse of the community directory . Any emailed messages to the entire community come from a designated person on the Board ., The Board normally sends multiple warning letters for a violation . To stop a harasser , the Board president informed the harasser further emails to himself would be blocked if the action continued. The Board approved a new policy that the property management company would send a warning letter citing the “noxious behavior” saying that the first communication was a warning but any further correspondence and (maybe) any further action in the handling of such violations would be from the Board’s attorney with expenses billed to the resident .
  • Sounds familiar ! We have had to have attorney guidance in certain situations . Our many rules include a generalized clause regarding “noxious behavior”. Our Board members and the community have received hate filled emails also. In response warnings were sent to the community about mass distribution of personal messages being a misuse of the community directory . Any emailed messages to the entire community come from a designated Board director . The Board normally sends multiple warning letters for a violation . To stop a harasser , the Board president informed the harasser that his emails to the president would be blocked if the action continued. The Board approved a new policy that, when warranted, the property management company would send a warning letter to offenders citing the “noxious behavior. ” It would say that the first communication was a warning but any further correspondence and (maybe) any further action in the handling of such violations would be from the Board’s attorney with expenses billed to the resident .
  • I’m 74 yrs old, with a disability, have lived here since 1993. Property manager uses our Association attorney as he was her own. She never presents the true facts to the attorney, he inturn sends out slanders, threatening letters to residents. Just recently she held an executive session to have the attorney send me a threatening letter. I spoke to several board members, after hearing my story, they said she lied to them. Now what’s funny an article that I’ve just read in this paper addresses slander etc, and this attorney is guilty of just that.
  • Owners have little legal recourse when a condominium board member and the entire board goes rogue. I live in a far south side condominium, the board president routinely threatens or attempts to intimidate owners. We have had, with board support, 2 different proxy/ ballot election results. The proxies had 3 candidates ballots 4. The board recently repaved the parking Restriped and increased parking space sizes to benefit a particular long term board member an attorney was consulted, letter sent stating that this was a violation of both the Illinois condominium act in the declaration the board retaliated by writing violations to the owners who protested. There is no legal recourse or protection for owners in the state of Illinois, no simple way to hold the board responsible for violations of the declaration. Some owners are attempting to petition to recall the board and current board president , but some owners actually fear retaliation should that fail . I would like to hear suggestions on how to deal with this issue
  • The only way to change the tyranny of the condominium boards is by changing the Illinois laws. We need fair laws that protect the rights of condominium owners because the courts and the legal system favors the condo boards. These boards have our money and an attorney paid by all of us, the owners, to harass and intimidate us. The other and main problem, in my opinion, is that most of the condo owners do not protest and do not support the owners that are single out by the board and the property manager. They want to "avoid" confrontation with the board. As one of my neighbors told me when I ask her to help me because the property manager and the board refused to send the plumbers to take care of a plumbing problem in the mainline of the building: "This is not my problem"