Like it or not, we live in the age of social media. It is undeniable and has dramatically transformed the way we communicate in every arena, including homeowners associations (“HOA”). Information, opinions and images are broadcast and circulated at a rapid pace with little or no oversight involved. These unfiltered transmissions over social media airwaves can have profound impacts on homeowners associations’ governance (board of directors), as well as its membership (homeowners). Understanding the legal implications of social media use in the context of managed communities is critical to avoid conflicts, unexpected costs and legal battles.
In recent years, we have seen a myriad of lawsuits stemming from social media abuse: In Tennessee, a homeowner faced legal action from her HOA for using the name of her subdivision on her personal Facebook neighborhood page. In New York City, co-op residents aired their dirty laundry online, resulting in multiple lawsuits. Elsewhere, a vacation-condominium owner sued a guest for $15,000 over negative social media comments.
It is not uncommon to find defamatory language being hurled at board members or management by disgruntled homeowners on online community forums, board members purporting to speak on behalf of the association on their personal Facebook pages, and association social media channels turning into de facto board meetings in violation of state law and governing document protocols.
These problems arise largely due to an inherent discord between the nature of social media and how community associations operate. Association managed communities are highly regulated and restricted – indeed, their chief governing instrument is titled Covenants, Conditions and Restrictions (“CC&Rs”). To the contrary, social media regulation is grossly inadequate. Simply put, people are free to share their thoughts and opinions without real consequences, which often leads to capricious communications. However, people cannot do this in community associations. For instance, homeowners cannot blurt out opinions in board meetings – in fact, homeowners are often not even allowed to speak, unless given permission.
Unfortunately, the legal landscape has been quite slow to catch up with the problems associated with unbridled communication. There are few, if any, state laws to govern the use of social media in the realm of corporate governance. Moreover, developers who write the CC&Rs are focusing on issues like special assessments and architectural approval, not whether board treasurer Bob has the right to post his opinions on the clubhouse renovation on Twitter.