RESIDENTS NEWSLETTERS

Started by FredW5 • 28 replies • 1643 views

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FredW5 (Florida)
Posts: 177

Posted:

Hello all.
Many of our residents want to publish their own newsletter beside the quarterly one put out by the HOA. Not sure if this is legal, or if residents can take it upon themselves to distribute their own community residents newsletter.

Any thoughts?.

Thanks.

Fred

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Fred

Yes they can. What many associations have tried to do is to make sure the newsletter specifically/boldly says not a BOD or so and so Homeowners Authorized Publication.

There have been court cases that went against newsletters and websites that tried to closely mimic/copy the association's name, logo, etc.

My experience says that many want to publish to bust the BOD's chops and many soon tire of it.

I say let it happen but make it clear it is not the BOD's Sanctioned Newsletter.

FredW5 (Florida)
Posts: 177

Posted:

Thanks. The residents also have their own community Facebook pages, but it is called ("name of community)residents page"

TimB4 (Tennessee)
Posts: 21,062

Posted:

Fred,

As John pointed out, residents may indeed create their own newsletter.
The Boards only request should be that the newsletter contains a disclaimer that it is not the official publication of the Association.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By FredW5 on 10/14/2016 1:09 PM
Hello all.
Many of our residents want to publish their own newsletter beside the quarterly one put out by the HOA. Not sure if this is legal, or if residents can take it upon themselves to distribute their own community residents newsletter.

As long as they aren't misrepresenting this as an official publication of the association, I can't imagine what law would be broken. Anybody can exercise their First Amendment right to freedom of speech.

Escaped former treasurer and director of a self managed association.

FredW5 (Florida)
Posts: 177

Posted:

Thanks, Douglas.
I was told that the first Amendment rights do not apply in cases of HOA'S , however, I also do not see anything regarding residents putting out their own Newsletter in our BY-Laws, or documents.

Fred.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Fred,

You are correct as the first amendment prohibits government from restricting freedom of speech. It does not directly apply to Associations.

However, Douglas is right as well, unless the newsletter implies it is the official word of the Association, there is little a Board can do other then to become more transparent along with rebuttals (if desired) within their official newsletter. I write this because I doubt your CC&Rs prevent members from publishing newsletters or flyers. If they do, please provide the language.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By TimB4 on 10/16/2016 10:33 AM
You are correct as the first amendment prohibits government from restricting freedom of speech. It does not directly apply to Associations.

Given the fact that so many cities and counties require new developments to have an HOA, it is merely a matter of time before someone successfully claims that the association is operating under color of authority. This would allow homeowners to bring suit under 42 USC 1983 for violations of their civil rights.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By TimB4 on 10/16/2016 10:33 AM
Fred and Tim,

You are correct as the first amendment prohibits government from restricting freedom of speech. It does not directly apply to Associations.

However, Douglas is right as well, unless the newsletter implies it is the official word of the Association, there is little a Board can do other then to become more transparent along with rebuttals (if desired) within their official newsletter. I write this because I doubt your CC&Rs prevent members from publishing newsletters or flyers. If they do, please provide the language.

The reason I mentioned the first amendment was that the original post asked if it was "legal" for non-board members to publish a newsletter. This would imply that Fred was looking for potential laws that had been broken. In that case I think the first amendment was relevant.

Escaped former treasurer and director of a self managed association.

AugustinD
Posts: 5,144

Posted:

HOAs are usually also corporations under the law. Many consumer web sites criticize one corporation or another. I recall that some corporations, via their board, have taken the web site publisher to court. Assuming defamation has not occurred, courts typically have ruled that the contents of the web site is not only protected free speech; it is speech that is vital to ensuring the lawful operation of a corporation. I think it's also important to consider why HOA member-shareholders are permitted to have copies of most corporate records under either state law or a HOA's governing documents: The whole point is to let member-shareholders inform others, through publication if needed, of the status of a corporation.

HOA members are not HOA employees. I think the free speech rights of a HOA member and a HOA employee are very different. It's the same idea as corporate shareholders having much more latitude to criticize their corporation compared to a corporate employee.

TimB4 (Tennessee)
Posts: 21,062

Posted:

While I still specify it's not a first amendment issue (as that addresses freedom of speech and the government), prohibiting free speech within an Association may violate State laws. Since the OP is in FL, I reference Article 1, Section 4 of the FL Constitution [emphasis added]:

Freedom of speech and press.—Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By TimB4 on 10/17/2016 2:56 AM
While I still specify it's not a first amendment issue (as that addresses freedom of speech and the government), prohibiting free speech within an Association may violate State laws.

Where the government part comes into play is when a corporation, seeking to restrict speech, asks a court to rule thusly. The court represents either a municipal, state or federal government. As long as the speech is not defamatory yada, then the First Amendment prohibits these courts from restricting it.

FredW5 (Florida)
Posts: 177

Posted:

Thanks, everyone for your great input and comments.
I have a meeting tomorrow with the Master Board, who expressed concerns regarding any of the residents in our r 13 communities putting out their own newsletter, or newspaper.
I will get back regarding the outcome.
Thanks again!
Fred.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By AugustinD on 10/17/2016 6:29 AM

Where the government part comes into play is when a corporation, seeking to restrict speech, asks a court to rule thusly. The court represents either a municipal, state or federal government. As long as the speech is not defamatory yada, then the First Amendment prohibits these courts from restricting it.

I would ask that you provide links to cases where HOAs were held to the federal constitution regarding free speech.

In the articles I've read, they all have headlines about 1st amendment rights but when you read the article, the crux of the decision is the State rights and not the federal rights. Regarding State constitutions (as States may expand federal rights) I offer the following:

See:

Dublirer v. 2000 Linwood Avenue Owners, Inc., et al. 2014 NJ Supreme Court ruling regarding prohibiting flyers violation of State Constitution.

MAZDABROOK COMMONS HOMEOWNERS' ASSOCIATION, Plaintiff–Appellant, v. Wasim KHAN, Defendant–Respondent. 2012 NJ Supreme Court ruling regarding prohibiting political signs violation of State Constitution

1st Amendment Archives A listing of cases from the Community Association Network (a sponsor of this site). In reading only a few of these, it still boils down to violations of State laws and not violation of the Federal Constitution Bill of Rights.

MarkM31 (Washington)
Posts: 494

Posted:

Just looking at a sample of those links, they all seem to just address delivery methods, such as door knocking, signs and the such. Nothing would seem to suggest that a member newsletter, as long as it was not libelous and did not infringe on any trademarks (real or implied) were legal to produce and disseminate by legal methods such as USPS, Facebook, the web or meetings.

AugustinD
Posts: 5,144

Posted:

Tim, the links you provided are an excellent read, especially the ones that involve election, voting, and campaigning rights. I see how they support your point, especially since I have no cases to cite concerning HOAs and application by the courts of the federal First Amendment. Here is one citation on the subject of the First Amendment being applicable to the states. http://atheism.about.com/od/churchstatemyths/a/FirstAmendmentFederalism.htm . I tend to think the arguments in the cases you cited could be used to argue a violation of the (federal) first amendment. Perhaps it was a matter of expediency, per the choice of the party bringing suit, that the cases you cite all went to state supreme courts.

I do want to be clear that speech of any kind, on or about a HOA property, has to be balanced against the HOA's rights to maintain a certain appearance of the property. Free speech has never been an absolute right. One cannot yell "fire" in a crowded theatre, where there is no fire, and expect to be protected by free speech rights in the state or federal constitutions, and so on.

MarkM31 (Washington)
Posts: 494

Posted:

Quote:

Posted By AugustinD on 10/17/2016 10:29 AM
Tim, the links you provided are an excellent read, especially the ones that involve election, voting, and campaigning rights. I see how they support your point, especially since I have no cases to cite concerning HOAs and application by the courts of the federal First Amendment. Here is one citation on the subject of the First Amendment being applicable to the states. http://atheism.about.com/od/churchstatemyths/a/FirstAmendmentFederalism.htm . I tend to think the arguments in the cases you cited could be used to argue a violation of the (federal) first amendment. Perhaps it was a matter of expediency, per the choice of the party bringing suit, that the cases you cite all went to state supreme courts.

I do want to be clear that speech of any kind, on or about a HOA property, has to be balanced against the HOA's rights to maintain a certain appearance of the property. Free speech has never been an absolute right. One cannot yell "fire" in a crowded theatre, where there is no fire, and expect to be protected by free speech rights in the state or federal constitutions, and so on.

None of this really has anything to do with a strict reading of the OP, which the answer to is yes

Quote:

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By MarkM31 on 10/17/2016 10:55 AM

None of this really has anything to do with a strict reading of the OP, which the answer to is yes

Sure it does.

Although we seem to all agree that the answer to Fred's question is yes, it's always good to provide the basis for said answer.
Exploring the obvious argument - the freedom of speech - is, in my opinion, a good place to get to.

This way Fred, if he hasn't already considered it, will be able to bring these points to his Board along with supporting documentation to, perhaps, help sway others on the Board.

AugustinD
Posts: 5,144

Posted:

I agree with Tim about discussing the reasons for people's affirmative answers here. Furthermore, the cases Tim cited will be valuable to my neighbors and me as we seek to replace the board at the coming election, via campaigning, distributing bulletins, and so on. E.g. it appears my neighbors and I may have certain rights to put handouts into the kiosks on my grounds, campaigning for certain people. (I am not in NJ, but I do not think my state has case law specific to HOAs on this the way New Jersey does. In which case I am aware the courts where I am will consider what other states do.)

SheliaH (Indiana)
Posts: 6,964

Posted:

As others have said, the board can't stop it, but should make sure everyone's aware that the association's newsletter and website are the official voices of the community.

However, I'm concerned you have a bigger problem - apparently something has happened or is happening that has compelled some residents to want their own newsletter. Are there any issues that have come up that have been more controversial than others? Maybe some of these folks have suggestions that haven't been taken seriously - setting up some sort of committee where certain issues can be researched and recommendations made to the board might bring positive change

Another option could be to establish a message board on your website if you have one or part of the newsletter could have a letters to the editor section where comments could be posted (you can always set rules regarding length, no obscenities, name calling, etc.)

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

MarkM31 (Washington)
Posts: 494

Posted:

Quote:

Posted By SheliaH on 10/17/2016 12:31 PM

However, I'm concerned you have a bigger problem - apparently something has happened or is happening that has compelled some residents to want their own newsletter. Are there any issues that have come up that have been more controversial than others? Maybe some of these folks have suggestions that haven't been taken seriously - setting up some sort of committee where certain issues can be researched and recommendations made to the board might bring positive change

And at the same time it has compelled the board to try to shut them up.

You gotta wonder what the underlying problems are

Quote:

Posted By FredW5 on 10/17/2016 9:13 AM

I have a meeting tomorrow with the Master Board, who expressed concerns regarding any of the residents in our r 13 communities putting out their own newsletter, or newspaper.
.

FredW5 (Florida)
Posts: 177

Posted:

Sheila, to answer your question regarding "Something has happened...." You are correct.

Our board President decided to Amend 2 by-laws.

1: A By-LAw Change letter was sent out to all residents which would make make all residents liable for the trimming of any hedges on their properties, as well as in common areas abutting their properties ,that are taller than 8 feet. This was rejected by all residents. A second mailing was sent to all residents for a vote with slight changes in wording.
(Hedges only) When I was asked by residents at a community party the reason for this by-law amendment I found out that it was done due to the fact that the lawn maintenance company did not have workmen's comp, so instead of them obtaining such insurance,A majority of the board agreed to make residents liable . I disagreed, and asked for an opinion from my own company attorneys, who agreed that this was illegal. Finally, this was rescinded, and suppliers had to show proper insurance. However, this left a bad taste in the community.

2: To allow the HOA, and management to enter residents homes if they are not around to "Inspect for any overgrown hedges, and to check for mold etc. ". I and another board member argued that this amendment must include wording including entering a residents home only "During Emergencies", etc.
3 out of 5 board members and our HOA attorney wrote that "we don't have to have all the wording, as we must leave room for any arguments or objections by residents. (Whatever that meant".). At a recent community party I was asked by residents about this, and there is to be a special meeting regarding this, where the HOA attorney will try to convince residents that its OK to do this. I am going to object on the grounds that this is illegal, unless the word "emergency only" is added.

Hopefully come January, when we have board elections we can get rid of a few irrational members.

MarkM31 (Washington)
Posts: 494

Posted:

Quote:

Posted By FredW5 on 10/17/2016 1:15 PM
Sheila, to answer your question regarding "Something has happened...." You are correct.

Our board President decided to Amend 2 by-laws.

1: A By-LAw Change letter was sent out to all residents which would make make all residents liable for the trimming of any hedges on their properties, as well as in common areas abutting their properties ,that are taller than 8 feet. This was rejected by all residents. A second mailing was sent to all residents for a vote with slight changes in wording.
(Hedges only) When I was asked by residents at a community party the reason for this by-law amendment I found out that it was done due to the fact that the lawn maintenance company did not have workmen's comp, so instead of them obtaining such insurance,A majority of the board agreed to make residents liable . I disagreed, and asked for an opinion from my own company attorneys, who agreed that this was illegal. Finally, this was rescinded, and suppliers had to show proper insurance. However, this left a bad taste in the community.

2: To allow the HOA, and management to enter residents homes if they are not around to "Inspect for any overgrown hedges, and to check for mold etc. ". I and another board member argued that this amendment must include wording including entering a residents home only "During Emergencies", etc.
3 out of 5 board members and our HOA attorney wrote that "we don't have to have all the wording, as we must leave room for any arguments or objections by residents. (Whatever that meant".). At a recent community party I was asked by residents about this, and there is to be a special meeting regarding this, where the HOA attorney will try to convince residents that its OK to do this. I am going to object on the grounds that this is illegal, unless the word "emergency only" is added.

Hopefully come January, when we have board elections we can get rid of a few irrational members.

Massive red flags here.

Does the lawn care company not have workers comp (and other insurance?) for climbing up ladders and pruning hedges? Or do they not have insurance, period? Both are equally likely.

Why does the board need to enter a house "to check for overgrown bushes"? That's a new one on me. What kind of association is this? If it's houses and not a condo or townhouse, there is no way that mold would impact others. Sounds like you have an intrussive board on your hands.

KerryL1 (California)
Posts: 14,550

Posted:

Now that you've provided background, Fred, I ask: what do your CC&Rs say about hedge maintenance??? And common area landscaping?

What if anything do the CC&Rs say about the Association entering homes? Under what circumstances? Even in our high rise, the association may not enter our condos without 24hr.- notice or in cases of emergencies. Mold??? C'mon! Not even here.

SheliaH (Indiana)
Posts: 6,964

Posted:

Well, that seems to explain why some residents wanted their own newsletter - they probably thought the board (or maybe the president) was playing fast and loose with the facts. If the board isn't forthcoming as to why the amendment is necessary, what else might they not be telling homeowners?

It’s OK to propose amendments to the governing documents but if this hoo-ha was over hedge trimming, it would have been much easier for the board to simply look around for another contractor who has the proper insurance. It’s really irritating when people select contractors without checking for the proper credentials because they’re too lazy or cheap to do their due diligence. If you want to hire this type of contractor for your own damn house, feel free, but as a board member, your responsibility is to spend association funds in a prudent manner. The president and whoever else went along with this stunt should know that, so you may be right that this will be fixed if the residents do their due diligence and vote these people out.

Whatever happens, this is a heads up for current and future board members to apply more careful thought to various issues, especially when it comes to amending the governing documents, because that will dictate how the community is run.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

FredW5 (Florida)
Posts: 177

Posted:

Quote:

Posted By SheliaH on 10/18/2016 6:27 AM
Well, that seems to explain why some residents wanted their own newsletter - they probably thought the board (or maybe the president) was playing fast and loose with the facts. If the board isn't forthcoming as to why the amendment is necessary, what else might they not be telling homeowners?

It’s OK to propose amendments to the governing documents but if this hoo-ha was over hedge trimming, it would have been much easier for the board to simply look around for another contractor who has the proper insurance. It’s really irritating when people select contractors without checking for the proper credentials because they’re too lazy or cheap to do their due diligence. If you want to hire this type of contractor for your own damn house, feel free, but as a board member, your responsibility is to spend association funds in a prudent manner. The president and whoever else went along with this stunt should know that, so you may be right that this will be fixed if the residents do their due diligence and vote these people out.

Whatever happens, this is a heads up for current and future board members to apply more careful thought to various issues, especially when it comes to amending the governing documents, because that will dictate how the community is run.

I totally agree, that this ought to be a heads-up for current and future board members everywhere.

Bottom line is that the lawn maintenance guys have been doing this for years in our HOA community, and are well liked by residents, however, no one had ever bothered to check and see if he & his employees had workmen's comp, (Which they did not after my personal investigation ). The President upon approval by 3 out of 5 members asked our attorney to draw up the BY-law revisions (Twice) in order to avoid making the lawn guys obtain insurance. This so far has cost us over 6,000 in legal fees.

Upon my discussing this with residents (Which pissed of the President who said I had no business discussing proposed amendments with residents) they voted down the proposed BY-law change, and supposedly, the suppliers now have to show proof of proper insurance coverage.

However, the latest situation is that the president now wants to change another by-law, making it "Legal" to enter our residents homes if unoccupied, if residents are snowbirds, or away, or even occupied, supposedly to check for overgrown hedges, mold, etc, without including proper verbiage such as "Only under emergencies", etc.

Even though I am a board VP,I received a letter from the HOA attorney initiated by the board President, asking me to cease and desist in being such an "Activist" and the President asking me to resign due to interfering with board matters by discussing changes with residents.

Amen.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By FredW5 on 10/18/2016 7:06 AM

no one had ever bothered to check and see if he & his employees had workmen's comp, (Which they did not after my personal investigation ). The President upon approval by 3 out of 5 members asked our attorney to draw up the BY-law revisions (Twice) in order to avoid making the lawn guys obtain insurance. This so far has cost us over 6,000 in legal fees.

One might want to investigate on the cost to the Association if someone from the landscape company is injured and they don't have workers comp.

See:

Contractors without Workers Compensation Insurance is Risky Business

What Are the Risks of Hiring Unlicensed Contractors?

Hiring a worker with no Workers Comp - risks?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By FredW5 on 10/18/2016 7:06 AM

Bottom line is that the lawn maintenance guys have been doing this for years in our HOA community, and are well liked by residents, however, no one had ever bothered to check and see if he & his employees had workmen's comp, (Which they did not after my personal investigation ). The President upon approval by 3 out of 5 members asked our attorney to draw up the BY-law revisions (Twice) in order to avoid making the lawn guys obtain insurance. This so far has cost us over 6,000 in legal fees.

Upon my discussing this with residents (Which pissed of the President who said I had no business discussing proposed amendments with residents) they voted down the proposed BY-law change, and supposedly, the suppliers now have to show proof of proper insurance coverage.

Where I live (which is not in Florida), state law requires any contractor working on an irrigation system, among other things, to have workers' compensation insurance. It sounds like you have your hands full, but when you have a moment, consider calling the oversight agency for construction yada, and ask if contractors are required to have workers' compensation insurance. For my former HOA, one of the contractors for several weeks said his company was exempt from being required to have workers' comp insurance. The Board liked the contractor; told the contractor to go get it; and that the HOA would pay the cost to him of this insurance. The contractor agreed to do this.

Maybe google for {"Workers' compensation insurance" florida law} as a starting point.

SheliaH (Indiana)
Posts: 6,964

Posted:

Goodness, this guy (and the three yes people) needs to be reined in post-haste - $6,000 in legal fees so ONE contractor didn’t have to get insurance???? If the contractor does good work and people like him (and he wants to keep the business, not to mention protect his own dang assets), someone could have asked him to provide written, verifiable documentation of insurance, and if he didn’t have it, tell him if such information isn’t provided by the time the current agreement expires, it will not be renewed. That’s a helluva lot cheaper than $6000.

Not only that, I see no problem with board members discussing proposed amendments or any other association issue with homeowners (the people who elect and re-elect them). As long as the information provided is accurate, you’re not undermining decisions made by the board (if you were outvoted, prepare a statement with your concerns and ask that it be attached to the minutes, which any homeowner can request) what’s the problem?

(Of course, this wouldn’t include items discussed in executive session, which is another discussion -see KerryL1’s recent post on that.)

During my 10 years on my HOA board, I always felt and still feel, anyone should be able to go to any board member to discuss association business – when board members say things like “I dunno, I wasn’t at that meeting/didn’t read the contract, etc.,” I get really concerned. I can see why the homeowners with the newsletters are concerned, although they should also be going door to door and talking to their neighbors (some people won't read ANYTHING regardless of who published it and then are shocked, shocked, when the donkey doo-doo lands on their front porch and they step in it)

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

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