Common Ground
CAI's Magazine for Community Association Leaders

Ask the Experts:

Guest Expert: George E. Nowack, Jr., Esq.

Q: Can a homeowner sue the association board for slander when his name is brought up in an executive session? During a discussion about a business operating out of a home and the increased flow of traffic to the home, the owner's name was mentioned as someone who was in violation of the rules. This owner claims he is not running his business out of his home and has threatened the board with a lawsuit if the names of the residents who complained are not made available to him.—Beaufort, S.C.

A: The answer to your question is no—at least not successfully. Slander is spoken defamation. It's generally defined as comments that injure someone's reputation or spread false information about the person.

Some comments, such as accusing someone of sexual misconduct or suggesting he is unfit for his job, are obviously meant to harm a person's reputation. The courts don't require someone who files a lawsuit to prove his accuser's intention in such cases.

But the South Carolina case doesn't appear to fall into that category. In this case, the neighbors brought to the board their concern that the homeowner was operating a business out of his home. Presumably, the board then discussed the allegations. To successfully sue the board for slander, the homeowner would have to show the neighbors knew the allegations were false and had intended to cause him harm. Informing a board of a suspicion of a covenant violation—even if the suspicion proves wrong—is not a statement that was known to be false. "I think a business is being operated" is totally different from "John is operating a business from his home." Even if the homeowner could prove the statement was known to be false, he must prove it was intended to cause him harm.

A slander claim also requires the statement to be said to someone other than the homeowner, except for "privileged communications" between members and a corporate board which are exempt from liability. Without this exception, no one would raise an issue involving another member without a threat of a lawsuit. In this case, the neighbors' statements and board members' comments were privileged.

Whether an owner has the right to know the names of his or her accuser depends on how the information is used. If the board imposed a fine based on the neighbors' suspicion that he was operating a business out of his home, the owner has the right to know the names. A defendant in our criminal system has the right to confront his or her accuser. While some disagree, I believe that the right extends to community association disputes.

If the board simply reminds the owner that business use of a unit is prohibited, then I don't believe the owner is entitled to know the names. If, after that notice, the board receives additional complaints, the board should investigate the claim to reach its own conclusion. If sanctions are imposed based on the information obtained by the board, the name of the neighbor who first raised the issue is irrelevant.

It might be easier to understand if the issue was a barking dog. If the board fines the dog's owner based solely on a neighbor's complaint, then the owner should be told who made the complaint. If a board member hears the dog, the sanction would not be based on the neighbor's complaint. Knowing the name of the neighbor who advised the board is not relevant because the sanction was based on a board member's observation. The owner would, of course, have the right to know the name of the board member who heard the dog barking.

George E. Nowack Jr. is a senior partner at Weissman, Nowack, Curry & Wilco in Atlanta and dean of CAI's College of Community Association Lawyers.

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