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SteveS8
(New York)

Posts:67

11/13/2009 1:55 PM
I moved into a relatively new 55+ condo community 18 months ago. I felt there was a need for a blog so that residents could speak their minds about community issues (i.e. issue with common areas, issues with apartments, social functions, discussions about various rules and regulations, advice on good restaurants in the area, recommendations for plumbers, electricians, painters, etc.). So, I started one. I put a large photo of the Clubhouse on the first page and the blog has become quite popular in the community, but I appear to be on the Most Wanted List of the Board since, in addition to all the wonderful things the community offers, I also am not shy pointing out that there are faults with the community as well as the way Homeowner's Meeting and elections are handled. Today I received a letter from the Board. It has three points: 1) I must put a disclaimer somewhere on the blog "acknowledging that it is not sanctioned by the HOA and the opinions are solely those of the individuals making the postings". 2) I must "remove the picture of the Clubhouse from the site" 3) I have to "refrain from posting erroneous, misleading and inaccurate items pertaining to the community". I can fully understand why the majority of Board members (the ones appointed by the developer) would not want even a hint of bad news coming from a blog of residents, and maybe the resident Board members are worried about resale values if negative press gets out, but I wonder whether they have any right to make these demands. From my perspective... 1) It would be easy enough to say that the blog is not sanctioned by the HOA, but, it doesn't say or even pretend that it is. 2) Since I am a condo owner, and therefore part owner of all the common areas, it would seem to me that I have a perfect right to put a photo of the Clubhouse on the blog. It is a beautiful Clubhouse and a beautiful picture. In no way is it demeaning and no post has ever berated it. 3) To my knowledge there has never been anything erroneous, misleading or inaccurate stated on the blog, but there have been some reports of leaking garages, broken garage doors, broken sprinkler heads damaging apartments, gates not working, fountains not working, dead shrubbery, complaints about how meetings and elections were held and assorted other issues. Certainly, if you did not want the entire community knowing these things, maybe you would want such posts stopped. Don't get me wrong. It is a great place to live. It is just not the perfect place that the developer would like people to believe. I would be interested in your thoughts about how I should handle this situation. Apparently, "The Truth Shall Set You Free" is not everybody's motto. Thanks! Steve

TracieS
(Colorado)

Posts:460

11/13/2009 2:27 PM
Posted By SteveS8 on 11/13/2009 1:55 PM From my perspective... 1) It would be easy enough to say that the blog is not sanctioned by the HOA, but, it doesn't say or even pretend that it is. 2) Since I am a condo owner, and therefore part owner of all the common areas, it would seem to me that I have a perfect right to put a photo of the Clubhouse on the blog. It is a beautiful Clubhouse and a beautiful picture. In no way is it demeaning and no post has ever berated it. 3) To my knowledge there has never been anything erroneous, misleading or inaccurate stated on the blog, but there have been some reports of leaking garages, broken garage doors, broken sprinkler heads damaging apartments, gates not working, fountains not working, dead shrubbery, complaints about how meetings and elections were held and assorted other issues. Certainly, if you did not want the entire community knowing these things, maybe you would want such posts stopped. I would be interested in your thoughts about how I should handle this situation. Apparently, "The Truth Shall Set You Free" is not everybody's motto. Thanks! Steve Ok, #1 - Just do it. Put a disclaimer at the bottom of each page... Perhaps they are trying to cover their own legal butts. #2 - Is the picture a copywritten picture? Is it one you took yourself? #3 - I'm thinking I can see your Developer Appointed BOD's point. Are the owners/members of your association using your blog as the place they make maintenance requests? I think there is a better venue for owners/members to address maintenance issues... Do they ever come back and post that something was FIXED??? Are you still under developer control? Based upon your post, I'm guessing you are.

GlenL
(Ohio)

Posts:3622

11/13/2009 2:34 PM
Boggles the mind…..really? How old are you? Of course they're within their rights to want a disclaimer that your blog is not sanctioned by the BOD. As to the photo, did you take it or is it copyrighted by someone else? Even if you took it you might not be able to use it since it implies that the blog is part of the HOA. It's called libel and you can be sued for it. In law, defamation – also called calumny, libel, slander (for spoken words), and vilification (for written or otherwise published words) – is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government or nation a negative image. It is usually, but not always, a requirement that this claim be false and that the publication is communicated to someone other than the person defamed (the claimant). In common law jurisdictions, slander refers to a malicious, false and defamatory spoken statement or report, while libel refers to any other form of communication such as written words or images. Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against groundless criticism. Related to defamation is public disclosure of private facts, which arises where one person reveals information that is not of public concern, and the release of which would offend a reasonable person. "Unlike [with] libel, truth is not a defense for invasion of privacy." False light laws are "intended primarily to protect the plaintiff's mental or emotional well-being." If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.

Your board meeting is not held in the Situation Room of the White House. It's not life or death. Let people in, keep it positive, then go home and get a good night's sleep. If you hold off drinking until after the meeting, instead of before or during, you're probably doing OK. JosephW

SteveS8
(New York)

Posts:67

11/13/2009 2:34 PM
Thanks Tracie, I took the clubhouse picture myself. In fact, I have put up dozens of beautiful landscape photos I took as well as some where the landscapers screwed up. I am an equal opportunity blogger. I have no ax to grind. There are rarely complaints about individual apartments. It is mostly problems in the common areas. The developer is still around and will likely be for 4 or 5 more years before everything is sold (just a guess). Steve

SteveS8
(New York)

Posts:67

11/13/2009 2:44 PM
Thanks, Glen. I am old enough to have been sued before. I understand the responsibility I have to make sure that I tell the truth since that is the ultimate defense (it is why the other time I was sued, I was found innocent). I agree about the potentiality to be sued. Anybody can be sued for anything whether they are in the right or not. The question is... What reasonable steps need to be taken to reduce the risk? Then I have to weigh whether allowing residents ( or myself) to speak about issues that need to be addressed is worth the chance that I get sued. The only other option is to close down the blog, and that would be a result that would hurt all the residents in the community. Steve

GlenL
(Ohio)

Posts:3622

11/13/2009 2:45 PM
To whom does this image belong? http://courses.cs.vt.edu/~cs3604/lib/Copyrights.Patents/Buchholz.poster.HTML And this guy took a picture of a building built with public money.

Your board meeting is not held in the Situation Room of the White House. It's not life or death. Let people in, keep it positive, then go home and get a good night's sleep. If you hold off drinking until after the meeting, instead of before or during, you're probably doing OK. JosephW

TracieS
(Colorado)

Posts:460

11/13/2009 2:52 PM
Posted By SteveS8 on 11/13/2009 2:44 PM Then I have to weigh whether allowing residents ( or myself) to speak about issues that need to be addressed is worth the chance that I get sued. I'm not arguing, just playing Devil's Advocate... Is your blog really the only place where these issues can be discussed? I really think the appropriate venue is more a meeting between BOD/Developer and members/owners. Would you allow comments/postings by BOD/Developer to address what they consider to be falsehoods? Is there a community website? Is there a community newsletter? How often does your BOD meet? Do you have owner's meetings? Since you're still under developer control, I'd tread lightly. My association hasn't been under developer control for 25 years, so I'm completely unfamiliar. I've read on HOATalk that it can be pretty contentious at times, though, with the Developer having almost all (if not all) the rights. Alternatively...do you feel the BOD's attempt to stop your blog (or reign it in within certain parameters) is infringing upon your right to free speech?

BrianB
(California)

Posts:2480

11/13/2009 3:40 PM
if you took the picture of the clubhouse from public land, or private land whereupon you had permission from the owner to be, you have pretty solid legal rights to it, depending upon the use you have for it. Personally, I would leave it, and let the HOA sick a lawyer on you. then you can remove it, and comply, but until they prove to you legally that you can't use that image, i wouldn't just take their word on it. Put in the disclaimer. it's easy, and it adds a layer of protection for YOU too. Put in a disclaimer that you are not responsible for any postings except those bearing your name/signature. another layer. stick with the thought you have: the best defense to libel is truth.

SteveS8
(New York)

Posts:67

11/13/2009 4:23 PM
Tracie, I would be happy to have the BOD/Developer say anything they wish on the blog. I welcome their saying that something is incorrect, but, instead, when there was a tremendous uproar about the developer firing security guards and hiring others without even notifying the Board, it was apparent that they signed up pretending to be a resident and made some claims about what occurred so they could hide the fact that they were on the developer's side. The Developer has a website to sell homes. No blog. No Newsletter. Once every two or three months, there is a Homeowner's meeting that either insists that questions be submitted in advance, or it is run by the Management company and only the head of that company answers anything. There is no question that they are trying to suppress freedom of speech. Just like everyone else in the community, I do not want people not to buy and prices drop. I have no ax to grind. I talk about observations that are truthful and almost always backed up by photos. Steve

SteveS8
(New York)

Posts:67

11/13/2009 4:29 PM
Thanks, Brian. I own part of that building. It is just a picture on the front of the blog. There is no text that goes along with it. Can I ask that the Developer take down his picture of the Clubhouse from his website because I own part of it? Yes, he built it, but the book says I own a piece of all common areas. Truth is on my side now as it was back in '89 when my company was sued. After 6 years of preparation and two weeks of trial, and $700,000 in lawyers' fees, the jury took all of 25 minutes to deliberate and find that I was the truthful one. I won the war but the battle wasn't won by either side. Steve

SteveS8
(New York)

Posts:67

11/13/2009 4:33 PM
Posted By GlenL on 11/13/2009 2:45 PM To whom does this image belong? http://courses.cs.vt.edu/~cs3604/lib/Copyrights.Patents/Buchholz.poster.HTML And this guy took a picture of a building built with public money. Thanks, Glen, Then the question remains... what picture can you put on anything? Looks like my grandson's face is the only thing that guarantees that I do not get sued (unless the obstetrician decides that he owns a piece of that?). What allows the builder to use the picture on his website? After all, the residents probably own 40% of that building since the community is 40% full? Steve

DJ1
(Ontario)

Posts:781

11/13/2009 5:06 PM
Didn't Glen answer the question of whether you can use the photo based on the info in his link? 1. You're not selling the photo 2. It probably isn't one of the 100 buildings copyrighted in the U.S. So enjoy. As far as a disclaimer saying it isn't sanctioned by the HOA, take the inverse argument...unless you are saying it IS sanctioned, then it isnt't, so no need for a disclaimer stating it isn't sanctioned by the HOA!

MicheleD
(Kentucky)

Posts:4491

11/13/2009 7:53 PM
There may be no "need" but it's pretty stupid not to just do it.

SteveS8
(New York)

Posts:67

11/14/2009 8:42 AM
Michele, On one level, it would be easy just to do it, but as with any dealings with human beings, there are multiple layers. It is obvious that the HOA is not happy with a blog that points out things that may not be right with the community (it also spends a great deal of time telling what is great about the community). It might be the HOA's goal to make the blog go away by constantly making subtle threats and asking for changes. If they feel that pushing hard enough will get them what they want, they are likely to push even further next time. So, there is a point when a stand must be taken. The blog is read and supported by the actual homeowners. The HOA is a majority of people who are not homeowners but rather developer hired. It seems to me that the homeowners have a right to have a photo of their clubhouse on the front page. It also seems that what the HOA views as "erroneous, misleading and inaccurate" is actually just the opposite when viewed without the developer's lens. As far as the disclaimer, I am considering this, "The ----------- On-line Forum is not sanctioned by the ----------- Homeowners' Association. It was never our goal nor desire to be sanctioned by the HOA. This Forum/Blog is, instead, sanctioned by actual homeowners who are interested in knowing, in a timely fashion, what is happening in their community. Therefore, the opinions expressed herein are solely those of individuals making the postings, and the HOA, Forum/Blog, and administrator are not responsible for its content." Does that work for anyone? Steve

TimB4
(Virginia)

Posts:3806

11/14/2009 9:54 AM
Steve, The disclaimer sounds good. When I published a non-sanctioned newsletter, the first article was that this is not the official word of the Association. In your case, you might even want to add a link to the Associations web site in that disclaimer. Something like: If you were looking for the official site of xyz please click here to be re-directed to their home page. Tim

SteveS8
(New York)

Posts:67

11/14/2009 10:00 AM
The HOA does not have a website (that would mean that they would have to communicate often). But the developer has one. Do you think it is a good idea to forward people to the developer's website?

MicheleD
(Kentucky)

Posts:4491

11/14/2009 10:19 AM
Posted By SteveS8 on 11/14/2009 10:00 AM The HOA does not have a website (that would mean that they would have to communicate often). But the developer has one. Do you think it is a good idea to forward people to the developer's website? Why would it not be? This isn't a war. But I can't stress enough how important it is to be sure to have a visible disclaimer that your site is not the official site for the HOA. It is for your benefit and it is also the truth. Why would someone be ambivalent about either reason?

MaryA1

Posts:0

11/14/2009 12:24 PM
The bottom line is that in most cases, the reason a member puts up a website is to have a place for members to air their grievances with the HOA. Oftentimes the person who has the site has grievances of his own. This may not be the case here, but the OP did state that he started his "blog" so members could speak their minds about the community. Anyone with an ounce of brain knows that not all the "speak out" comments are going to be glowing reports about the BOD. And I wouldn't doubt that a few unsavory comments about the BOD have been posted on his blog. I'm not surprised the BOD is not in favor of this blog and has requested a disclaimer be posted. IMO, the OP should post the disclaimer and make certain that the blog makes no reference to the HOA and in no way can be construed as a blog of the HOA. If that means eliminating the pic of the clubhouse, so be it. That way, the members can say whatever they wish about the BOD and the BOD cannot do anything about it. Unless, of course, it is libelous, in which case they can take court action.

DonnaS
(Tennessee)

Posts:5671

11/14/2009 12:39 PM
Our Master Gardener newsletter editor always includes the name of any persons taking photos that are published. We deal with the City newspaper a lot and they will put disclaimers on many articles, especially if they are open to argument. It is such a simple thing to do for the o.p. If he wants to be an vital member of his community, maintaining a web site that allows bitching against his Board and Developer is counterproductive IMHO. It kind of compares to the National Enquirer verses the New Your Times .Who ya gonna believe?

MaryA1

Posts:0

11/14/2009 12:53 PM
Neither! LOL

SteveS8
(New York)

Posts:67

11/14/2009 2:15 PM
Thanks Donna, I have to take issue. I am a vital member of the community, and it is for exactly that reason that I started the blog. I can think of at least a dozen instances when things that were wrong were corrected, literally, within hours of their being pointed out on the blog. This, in spite of the fact that the Board tries to make believe that there is no blog. However, I do not want to leave the impression that the blog was started so I or anyone else could complain. It was started as a way for people to help out each other with recommendations of plumbers, electricians, general contractors, restaurants, etc, etc. In fact, I created an organized thread that lists all of these and it is very long and has been accessed almost 2000 times. I often post pictures of how beautiful the community is and many homeowners and I talk about how happy they are here. But it is not heaven. Things go wrong, and the homeowners deserve to know when they do and have them taken care of. Case in point... my building had a sprinkler head break late on a Sunday night a few weeks ago. It took close to 30 minutes for the firemen to get to the place where the breakage occurred. There was pretty extensive damage to the building because no one knew where the sprinkler shut-off valve was and said that even if they did know, they would not shut it off without the fire department's approval. One older resident's apartment was leaking like a sieve. Had I not grabbed my camera and done a blow by blow of the events of the night, it is highly likely that it would have been hushed up and no one would have known that there was a delay in response and a possible problem if a sprinkler head goes. I cannot see how it is not in the best interests of the homeowners to have as much information at their finger tips as possible. My only goal to to help my neighbors. I am not a complainer. It is likely that the developer has some additional considerations in mind. Steve

SteveS8
(New York)

Posts:67

11/14/2009 2:19 PM
Thanks, Mary. It is easy to physically write a disclaimer, and maybe I will. But I wonder (he thinks to himself with a smirk) if I can insist that the developer put a disclaimer on his site that it is not sanctioned my the On-line Blog. And while they are at it, perhaps they need to take down their picture of the Clubhouse because that's the way some of the homeowners want it. Steve

DonnaS
(Tennessee)

Posts:5671

11/14/2009 2:48 PM
GEEEZ Steve, Why do you think that you can tell the Developer what he can do on his website. It sounds to me from your original post that the Developer has not turned over control of the community to the members yet. Is that the case? If he has not, he is still in control of the community and his website is his property and that includes the clubhouse. You may have bought part of it when you signed your deed restrictions but until you have turnover, it belongs to the developer and that includes the picture of it. Try focusing on the right parts of the community rather than focusing on what is wrong. I have owned 3, 55+ community units so I am aware of what the residents mindsets can get to be. Rather than making the Developer look bad, work to make things better.

SteveM9
(Massachusetts)

Posts:1529

11/14/2009 3:13 PM
Its sad, but today's society is sue happy. Your better off hosting a blog or forum off shore such as russia, ukraine, etc. A take down notice from a USA lawyer will mean nothing to them. Or just setup a blogger account anonymously. Never claim its your, use nicknames, etc. Do your blog, but why risk getting sued. Not worth it, everyone looses.

MaryA1

Posts:0

11/14/2009 7:06 PM
Steve, Here's the biggest problem with your blog -- you said: "I also am not shy pointing out that there are faults with the community as well as the way Homeowner's Meeting and elections are handled." You may have written something about the BOD that really wasn't the truth! People oftentimes complain about things they really don't have the whole story on, or even worse, really know nothing about. I'm not saying this applies to you, only that it does happen. Perhaps one of the members who posted a comment didn't know what he was talking about. IMO, if you want to have a community blog, leave out the "speak out" section. Write about everything that's good about the HOA. But, maybe that would take all the fun out of having a blog???????

SteveS8
(New York)

Posts:67

11/14/2009 8:40 PM
Donna, I was just kidding about asking the developer to take down his picture. Yes, the community is probably 40% sold right now. However, I believe there is no law against my taking pictures of buildings and putting them on websites. I am not selling the pictures. The building isn't trademarked, and I took the pictures while standing on a community road. As far as the focus of the blog... it is solely there to help the residents. If that means recommendations of reliable contractors or if it means pointing out shrubs that had died months earlier or if it means promoting the men's association or if it means telling the story of a building that was flooded or if it means showing pictures of the excellent architecture or if it means discussing crowded conditions at the pool, or if it discusses how great the activities are, it is serving the residents. Focusing on only goodness and the positive and right parts of the community items serves nobody but the developer. I am not a paid employee of the developer. I am a resident. I have no ax to grind. I want the community to sell out as quickly as possible and certainly would not want to hurt that process, but if mentioning a negative gets that negative fixed quickly and turned to a positive, then I have done my job. Steve

SteveS8
(New York)

Posts:67

11/14/2009 8:49 PM
Mary, As I just said to Donna... writing about all sweetness and light serves nobody any good (except maybe the developer). If there are problems, they need to be addressed, and, posting about those issues has consistently been the very fastest way of getting those issues addressed. When the developer made a change in the security force of the community, Board members were not notified. It was the blog that brought the fact to everyone's attention so the issue could be discussed. When our building was flooded, the Board members were not notified immediately, and it was the postings on the blog that brought the problem to everyone's attention. In both of those cases, nothing was said to the community by the Board at all. Without the blog, they would have been swept under the rug. Whose best interest is served in these cases? Certainly not the residents. Steve

SteveS8
(New York)

Posts:67

11/14/2009 8:56 PM
SteveM9, I agree completely that we live in a litigious society. It is unfortunate. But the reality is that we are supposed to be blessed with Freedom of Speech, and, as long as we do not abuse that privilege, we should be safe from losing those battles (even though the lawyer's fees can be prohibitive). But I feel I have an obligation to my neighbors and my investment in my home, and because of that we have a blog. Steve

MaryA1

Posts:0

11/15/2009 6:10 AM
Steve, The incidents you mention are a lot different than members posting untruths about the BOD's (the developer's) actions. For example, saying the election was held illegally w/o having any proof of it. It doesn't serve anyone any good to post rumors and lies either and I know you can't tell me that everything posted about the developer has been checked out and verified as gospel. Yes, I agree the blog can be used to disseminate info to the members, but NOT to spread malicious gossip and the latter happens all the time on these "blogs". And that's the reason for the disclaimer and also for eliminating the pic of the clubhouse and any reference to the HOA in the website address or title page.

DavidW5
(Virginia)

Posts:334

11/15/2009 7:15 AM
We faced a somewhat similar situation here in our 55+ community. A resident established a website, on his own server that included a homeowner discussion forum. The board and community manager initially used the site to post association notices and information and to answer homeowner questions. When discussions appeared that were critical of the developer and the homeowners the developer appointed to the board, the board demanded that the web master turn over the passwords for the site. He refused, and pointed out that he owned the domain name and server. The developer threatened legal action against the web master and some homeowners who had posted information that was critical of the developer. We consulted an attorney and a group of us contributed funds to create a non-stock corporation. Now all materials, both electronic and printed, bear the signature of the chairman of the corporation. As the corporation has, essentially, no assets, the developer is free to sue it, but has realized that is fruitless. We continue to do all the things we were doing, without the threat of lawsuits against us as individuals. It cost us several hundred dollars to incorporate but it has proved to be worth it.

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