Prohibitions Against “SLAPP” Suits: What Associations and Their Managers Need to Know

Both the Florida Homeowners’ Association Act and the Condo Act contain prohibitions against so-called “SLAPP” suits; SLAPP stands for “Strategic Lawsuits Against Public Participation”. The condominium anti-SLAPP suit statute is found at §718.1224 and the homeowners’ anti-SLAPP suit statute is codified at §720.304(4).  While these statutes are important for associations and their management to understand, most people probably have no clue what a strategic lawsuit against public participation is, let alone how the law stands to affect associations.

Florida Statute §768.295 sets out the legal definition of a SLAPP lawsuit.  The statutory definition is filled with legal terminology that can be difficult to understand, so the definition is best summarized as follows:  A SLAPP suit occurs where Party A sues Party B, usually for libel or slander, premised on Party B’s statements when petitioning the government or speaking out on a matter of public concern.  Due to the high cost of litigation, the individual might capitulate and forgo exercising his free speech rights.  Essentially, a SLAPP suit seeks to scare someone, by use of a suit for libel or slander, from speaking his or her mind in a public forum.  The condo and HOA statutes apply to association members who appear and present before a governmental entity on matters related to their associations.  It is also important to note that under these statutes, anyone who brings a SLAPP suit against a condominium or homeowners’ association member will face liability; the statutes do not limit liability to just associations or their board members.

Based on the foregoing, it is easy to see how associations might become embroiled in a SLAPP situation.  For example, perhaps a condominium association is planning to elect a new Board of Directors, including a new president.  It is expected that Board member Mrs. Smith will take over as president of the association.  However, another condominium owner, Mr. Taylor, has done business with Mrs. Smith and found her to be dishonest and untrustworthy as a result of Mrs. Smith having refused to pay Mr. Taylor $25,000.00 for products she ordered from his business.  Resultantly, Mr. Taylor has serious reservations about trusting Mrs. Smith with management of the association and its bank accounts.  As it happens, the Florida Division of Condominiums, Timeshares, and Mobile Homes has just set up a task force to investigate fraud and theft being committed by the boards of directors of condominiums.  Mr. Taylor is invited to present comments to the task force and he speaks about his experiences with Mrs. Smith and his qualms about having her serve as the president of the condominium’s board of directors.  Mrs. Smith learns of Mr. Taylor’s comments and subsequently she and the association sue Mr. Taylor for slander, based on the comments made to the task force.

Or, perhaps a homeowners’ association’s board is considering purchasing a few acres of land adjacent to their community, so they can pave over it and construct a playground and parking lot for homeowners and their guests.  In order to do this, the association will have to obtain a special variance from the city government.  A homeowner has problems with tearing down the trees and natural growth on the land, and appears at a hearing of the local zoning board to protest the association’s application for a variance.  The homeowner’s comments are so persuasive that she convinces the zoning board to deny the variance.  As a result, the association sues the homeowner for slander, arguing that she intentionally misstated certain details about the deal.  The contractor who was going to build the playground and parking lot also sues the homeowner for tortious interference with a business relationship.

Both of these examples would fall under the SLAPP prohibition statutes.  In each case, an owner in the community appears before a governmental entity to make remarks about issues concerning their associations.  The lawsuits are a direct attempt by the associations and, in the latter example, a business partner, to silence and penalize association members for participating in the state’s institutions of government.  Accordingly, each of these examples presents a SLAPP suit situation.

As a result of these laws, it is of the utmost importance that associations and their boards consult with their counsel before trying to address negative comments made by an owner to a governmental entity and/or any negative publicity arising from such comments.  Importantly, an owner who is subject to a SLAPP suit is entitled, in both the condominium and HOA context, to an award of his reasonable attorney’s fees and costs incurred in defending against the SLAPP suit.  Further, both the condominium and HOA anti-SLAPP statutes provide that association funds may not be expended for the prosecution of a SLAPP suit.

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