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Legal Q&A: HOAs and Inaccurate Social Media Comments

Condo residents created an unofficial Facebook page, but info is often inaccurate. Also: To avoid water leaks, can residents be forced to replace old appliances?  

NAPLES, Fla. – Question: A number of residents in our community have created a Facebook account using the name of the community. Many residents have joined the group under the assumption it is the homeowners association’s (HOA) official Facebook page. The administrators of the page are not on the board and so much of the information and rumors spread on the page are false. What can we do? F.B., Bonita Springs

Answer: This has become a frequent problem for many communities with the increasing popularity of social media and the growth of social media communities. The association has a very limited ability to limit what can be posted on social media because residents have a right to assemble on private social media platforms and, accurately or not, voice their opinion on community matters.

These rights, however, do have some limits. Any website or social media platform used by residents should not create confusion about whether the page is an official page of the corporation. The HOA has property rights in the use of the name with respect to community management. Depending on the level of protection and ownership in the community name, you may or may not be able to prevent the residents from using the name of the community, but it is my opinion that you can prevent them from using the name of the community in a manner that creates confusion. If a resident is under the impression that the Facebook page is the community’s official page, that is a problem that should be corrected with, at a minimum, a conspicuous disclaimer or name change.

Next, although you have the right to publish comments on a social media platform, those comments could be actionable if they are defamatory. The analysis on this issue would take more space than allotted, but social media posts can be considered a publication in certain situations where a false statement or accusation could result in liability by the individual posting on the site.

Finally, I am often asked how a board should deal with inaccuracies on these forums. In my experience, I have seen more inaccurate information and rumors spread on these unofficial social media platforms than I have seen accurate information. In other words, many board members want to jump into the social media conversation to correct inaccuracies or defend themselves against unjustified or false accusations. Although this urge is completely understandable, those of you reading this article that have tried to engage in this internet debate most likely discovered that the internet is not always a safe space for debate.

If my clients insist on posting in these social media platforms, I generally recommend the board acknowledge that there is inaccurate information and invite the residents to attend a board meeting for a discussion on the matter.

Question: Our condominium is approaching 15 years old and many of our residents still have original hot water heaters, dishwashers and washing machines. We have seen an increase in water damage and related expenses caused by these appliances. Other owners are refusing to replace these older appliances because they are currently working. What can we do to prevent further damage? P.H., Marco Island

Answer: This requires a discussion on liability when there is water damage. First, assuming the damage is an insurable event, the statute will control who is responsible for what. Very generally, the condominium association is responsible to repair and replace the common elements and drywall, and the owner is responsible for the flooring, wall coverings and property inside the unit. Each owner with damage, and the condominium association, would submit a claim to their insurance carriers and the carriers would provide insurance proceeds to help pay for the damage.

The next question is usually whether the owner with the broken appliance is responsible for the damage to the common elements and surrounding units. The answer depends on a number of factors, the most important of which being whether the offending owner was negligent or whether they were in violation of a rule that resulted in the leak.

As you can imagine, proving negligence is very fact sensitive and can be difficult. If an owner has an older appliance that is working, and even assuming the appliance is professionally maintained every year, is it negligence when the 20-year-old water heater finally bursts? What if the hot water heater had a history of leaks with repairs? What if the unit is leased? What if the unit is empty for half the year and the home watch vendor fails to check the unit that week?

Florida Statutes section 718.111(11) regulating repairs following an insurable event provides that “a unit owner is responsible for the costs of repair or replacement of any portion of the condominium property not paid by insurance proceeds if such damage is caused by intentional conduct, negligence, or failure to comply with the terms of the declaration or the rules of the association by a unit owner, the members of his or her family, unit occupants, tenants, guests, or invitees, without compromise of the subrogation rights of the insurer.”

Aside from the negligence component discussed above, note that you are responsible for damages flowing from the failure to comply with the declaration or rules. This means that the association’s actual ability to seek reimbursement for water damage expenses is rooted in the strength of your Declaration of Condominium and rules.

One recommendation is to adopt a formal rule requiring owners to shut off water to the unit when absent for more than a specific time period. This rule should be adopted a) after consulting with legal counsel to ensure that the rule is enforceable; and b) at a special board meeting with 14 days’ mailed and posted notice. You may consider adopting the rule at your upcoming budget meeting to save on mailing expenses.

Second, consider an amendment to your Declaration to specifically address high-risk components such as hot water heaters, dishwashers, hoses, connections, and washing machines. For example, the Declaration could provide that the board has the authority to require the replacement of certain components every 10 years. If the component bursts after 10 years, this type of covenant could help create a presumption of negligence. In other words, although negligence can be very difficult to prove, the board is in a better position to shift liability to an offending unit owner when there are objective and specific maintenance requirements set forth in the Declaration of Condominium. Even if you have this language, you should ensure that the board has adopted any necessary resolutions so that you can enforce these requirements, if necessary.

I would recommend you consult a Florida licensed attorney to assess the strength of your rules and covenants to determine whether the association should take any corrective measures.

Attorneys at Goede, Adamczyk, DeBoest & Cross respond to questions about Florida community association law. With offices in Naples, Fort Myers, Coral Gables and Delray Beach, the firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law. Attorney John C. Goede is a shareholder in the law firm of Goede, Adamczyk, DeBoest & Cross.

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