Q&A: Mutiny on the Board

Q The homeowners of my condo are very unhappy with the current board, and have therefore petitioned for a special meeting for the sole purpose to vote them off as Board of Trustees. A special meeting was granted and the board mailed out a letter, a voting and proxy sheet on the same page. Also included in this mailing was a separate letter from the board called “Trustee Statement to Our Fellow Homeowners.” In this statement, there was a small paragraph which read: “A small group of Unit Owners calling themselves the committee for concerned homeowners has launched a campaign to have the board removed. They claim to have a shadow board ready to take over the management of the association.” The letter went on to name me as leading the group and noting that my unit was up for sale. I resent being singled out by name. What can I do? Also, we just found out that the current president is going out door to door requesting proxies. Isn't this against the law?

—Trustee Trouble in Taunton

A “While the “Trustee Statement” provided in the special meeting package may not have been very tactful or politically-savvy, it does not appear on its face to be a breach of any legal obligations,” says Attorney Scott J. Eriksen, an associate with the law firm of Perkins & Anctil, P.C., in Westford, Massachusetts. “With respect to the first part of the question—whether the individual singled out by name has any recourse against the board—the short answer is: maybe. In Massachusetts, tortious defamation is characterized as a false and defamatory communication of and concerning the plaintiff which is published or shown to a third party.

“In the case above, there is no question that a statement about the vocal unit owner has been made to third parties (in this case, as the statement was made in writing, the potential form of defamation would be libel, which is defamation in writing—as opposed to slander, which is spoken). However, the fact that the board sent this notice to all owners alone—even if it is offensive or troublesome to the vocal owner—is not enough to sustain a claim of libel. The vocal owner must also prove that the statement was false (as truth is generally—though not always—a defense to a defamation claim), and must also show damages. To the extent that this owner was in fact a vocal opponent of the current board and is listing her unit, then the statement above appears true (even if it is inelegant).

“To properly evaluate the viability of a defamation claim requires an in depth analysis of the facts in question, and it would be prudent to obtain counsel to do so. As to the second question, whether it is illegal to solicit proxies in advance of the meeting, the short answer in this case is: no. Assuming that proxies are allowed under the governing documents, obtaining proxies in advance, and seeking support for various actions (by reasonable and lawful means) is not prohibited. Just as the group seeking to remove the current board is entitled to solicit support for their cause, the current board may—by lawful, appropriate measures—do the same. To the extent that any “solicitation” devolves into harassment, intimidation, bullying or other aggressive or inappropriate activity, however, counsel (or, if necessary, law enforcement) should be involved immediately.”    

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