Live in a home governed by a condominium, co-op orhomeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: I truly do not understand why Chapter 718 (the Condominium Act) does not require background checks for board members.
To my horror, when I ran background checks on all seven board members of my condominium board, five of them had one or more bankruptcies in their past. The property manager even had a bankruptcy.
Is it illegal to post this information on social media or even send it directly to owners? My daddy used to say, “If you cannot manage you own finances, you sure as heck cannot manage anyone else’s.” Signed, R.H.
Dear R.H.,
Most forms
of legally actionable defamation require a person to make a false statement of fact that damages someone’s reputation. The existence of a bankruptcy is a matter of public record — so if you are quite sure that the information you got was correct, you would probably be safe from being found liable in the event of a defamation claim. There is also a legal defense that some courts recognize called the “common interest” privilege, where statements made to a commonly interested group of persons (such as owners in a condominium) are privileged against defamation claims, even if the information were to be inaccurate.
With that said, I’d strongly recommend getting specific legal advice before pursuing this course of action.
While revealing the existence of these bankruptcies might not rise to the level of actionable defamation, that doesn’t prevent someone from suing you. You cannot recover legal fees in most defamation cases, and so you’re going to spend many thousands of dollars defending yourself if one or even multiple of these board members were to file suit against you.
Is the risk of potentially defending yourself against five separate defamation lawsuits worth broadcasting these bankruptcies to your building? That’s the judgement call that you need to make.
Question: With our condominium building having 231 units, does our pool qualify as "public" under the laws that regulate swimming pools? Signed, C.G.
Dear C.G.,
It likely does. Chapter 514, Fla. Stat. (Public Swimming and Bathing Facilities) says that “public” pools include pools and spas in any cooperative-living environment with five or more units — so that includes the vast majority of condominiums, HOAs and cooperatives.
You are obligated to follow all the statutory and administrative guidelines regulating public pools, unless expressly exempted by the law. However, there are some specific limitations. Condominiums, HOAs and cooperatives with no more than 32 units that are not operated as public lodging are exempt from statutory regulation, other than with respect to water quality.
Condominiums and cooperatives with greater than 32 units that prohibit short term rentals (rentals of less than 60 days) are also exempt from a lot of the rules, but they must still be permitted and inspected with respect to water quality and lifesaving equipment.
Oddly, this exemption does not reference HOAs, and so presumably HOAs with more than 32 homes are subject to full statutory regulation regardless of short term leasing.
Question: I realize that association boards are not obligated to answer any questions. However, I feel they have a moral and ethical duty to do so. Is there anything that would require HOA boards to respond to written requests for information? I recently lost in small claims court regarding my board failing to respond to my records request. I was pro se (representing myself), and the HOA was represented by two lawyers.
The board refused free mediation from the state, and the judge ruled that my evidence was hearsay and not admissible in court. I was also denied witnesses who were willing to testify that the evidence was provided by the property manager. The association has now submitted paperwork saying that I owe them $16,000 in legal bills. Any help or recommendations would be greatly appreciated. Signed, J.S.
Dear J.S.,
I am very sorry to hear you are in this position. While HOAs are obligated to allow you to inspect official records, the board is not obligated to respond to inquiries at all. While I can’t comment on the merits of your lawsuit, your story is an excellent reminder of the risks of pursuing legal action without an attorney.
The legal system is, by necessity, extremely complicated, and it is nearly impossible for a pro se litigant to win in court. I view any dispute with a pro se party to be as close to an automatic win as possible, even with our uncertain court system. A non-lawyer cannot become sufficiently conversant in the extensive rules that govern every aspect of our court system to allow them to successfully litigate a case. This is why lawyers earn advanced degrees, are not permitted to practice law until they have proven to understand these rules, and even then, work for many more years under far more experienced attorneys before they are ready to handle a trial on their own. What you tried to do is nearly impossible, and now you will unfortunately suffer financially as a result. This is why I always warn people not to take on their associations on their own.
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living." Email your questions to condocolumn@gmail.com. Please be sure to include your location.
This article originally appeared on Palm Beach Post: Several condo board members had bankruptcies. Can I post on socials?
