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Last week the Nevada Supreme Court, in Kosor,[i] citing California Davis-Stirling law and Damon[ii] and Kite Hill[iii] opinions, affirmed HOAs as public forums. Issues relating to HOA governance are matters of public interest protected by free political speech.
In short, legitimate and valid criticisms of your HOA and its president and board are protected from HOA lawsuits of defamation and libel. At heart: Are the statements made in good faith and truthful?
Kosor filed an anti-slapp motion in defense that argues that the statements at issue were protected under free public speech — statements that were of general interest to the public. In summary, here’s what the Court upheld, following California’s rulings and law.
“Accordingly, we conclude that Kosor met his prima facie burden to demonstrate that the statements in question were all made in public forums on a matter of publicinterest.
“Nextdoor.com post qualifies as a public forum for the purposes of anti-SLAPP protections. . . .these steps [Kosor’s statements] do not seem to differ significantly from that which might be required to view posts on Facebook; that is, a post on Nextdoor.com is as compatible with expressive activity as one on the other platform, which we have already held can support a public forum.
“The HOA here is no less of ‘a quasi-government entity’ than that in Damon, ‘paralleling in almost every case the powers, duties, and responsibilities of a municipal government.’”
“it appears that Kosor’s post, like his HOA meeting commentary, campaign flyer, and printed letter, sought to open conversation among Southern Highlands community members and enlist their participation in the community’s decision-making process.
Does your state protect your right to dissent in an HOA? Why not?
[i]Kosor v. Olympia Companies, NV No, 75669 (Dec. 31, 2020).
I just viewed the live Arizona appellate court oral arguments in Tarter v. Bendt (CA-CV 19-0703 (Ariz.App. Div. 1 (2019)) and found it very informative. I have attended AZ SC oral hearings before but not an appellate hearing.
Bendt’s (defendant homeowner) attorney did an excellent job given the fact that she wasn’t the trial court attorney. I was very pleased to hear her arguments on limited-purpose public person that I missed over these years. Her rebuttal on free public speech was excellent! As you know I’ve posted a few cases on this issue that, in general, addresses the topic that HOAs are public forums subject to free political speech protections – you can criticize your HOA within limits.
A limited-purpose public figure is either:
“One who voluntarily becomes a key figure in a particular controversy, or one who has gained prominence in a particular, limited field, but whose celebrity has not reached an all-encompassing level.”
Two examples of holding HOA directors and officers subject to free speech doctrine can be found in Dublirer v. 2000 Linwood Avenue Owners Assn (NJ Supreme Court, 2014) and in Cabrera v. Alam (Cal. App. 4th (2011).
This case, although involving an HOA president’s conduct, Tarter, who is also a lawyer, is really an issue of defamation by the president against Bendt. The argument by Bendt’s attorney is that the HOA president is a limited-purpose public figure as described above and there was no valid defamation according to law — no malice. Malice being defined as: knowing that it is false; or acting with reckless disregard for the statement’s truth or falsity.
It is very informative that anyone thinking of suing his HOA should watch the oral arguments and see how harsh and strict the court demands supportable and defensible evidence. And how your attorney must be able to respond to questions by the judges and arguments by the HOA.
A MUST VIEW AT TARTER. (45 minutes; the last 5 minutes present the public forum argument by Bendt’s attorney).
What do I mean by “rogue president”? I mean a president who does not know the law and doesn’t care to know it, or who knows the law and just ignores it. In either case that president is plain and simple an outlaw by functioning outside the law. Trump and rogue HOA presidents fit my description and are outlaws.
I have often wondered why communities, or at least the strong voice of a faction, government officials and legislatures have supported and collaborated with HOA presidents; just like we have witnessed on the national scene. And with their attorneys in full support! Obviously in pursuit of personal, self-serving agendas.
I’ve come to the conclusion that the HOA social and political dynamics are identical as we have witnessed on the broad national scale. I am not sure as to what came first, the chicken or the egg? To what extend has the HOA independent principality mentality and legal scheme contributed to the national scene? Or are the HOA dynamics just a reflection of the broader culture in America today?
To get a better understanding of the HOA dynamics at play, read:
This commentary follows up on my plan to restructure HOA governance that first requires addressing the attitudes and views of BODs, the members, and the public in general. The conditioning and indoctrination by the biased views of the national pro-HOA special interest entity must be de-conditioned by a program of reorientation.
Once again I provide valuable information on the proper functioning of HOA boards in serving their “constituents,” their members.
The management of a country, a state, or a local government, including the private HOA association, is commonly known as politics. Politics is:
“the practice and theory of influencing other people on a civic or individual level. More narrowly, it refers to achieving and exercising positions of governance — organized control over a human community, particularly a state.
“exercised on a wide range of social levels, from clans and tribes of traditional societies, through modern local governments, companies and institutions up to sovereign states.
“A political system is a framework which defines acceptable political methods within a given society.”
Managing a government disguised as a nonprofit association has its unique requirements and demands that, for the most part, have been ignored. The commonly found guidelines from the national pro-HOA lobbying entity speak to an authoritarian government with member interests and concerns being secondary to the survival of the association. It’s an unacceptable deviation from the intents and purposes of our constitutional government.
First, let me address the requirements for the sound management of a nonprofit association. Drucker focuses on the overall, broad purposes and responsibilities of the board of directors (BOD) or board of trustees.
The general term “nonprofit” does not apply to HOAs because it is not a business nor a public government, but “government controls.” The reality of the HOA association is that it controls as does a public government.
Drucker asks, what is the mission of the nonprofit? A mission statement has to focus on “what the nonprofit really tries to do.” It cannot be “a kind of hero sandwich of good intentions.” Strategies “convert intentions into action.”
Most HOAs, especially the smaller HOAs, do not have a sound strategy that addresses their mission, goals, and values. But the HOA has an explicit mission and purpose as set forth in the CC&Rs and need to be revisited and made consisted with Drucker and Batts (see below).
Second, in an excellent book on the need for director orientation, the author feels board orientation is lacking and instituting a guideline will improve the nonprofit’s mission and goals. In his succinct book, as applied to HOAs, Batt’s makes the following important points:
Key areas of board action are “strategy, oversight, and policy.” In keeping with Drucker, “boards and board members should not micromanage the affairs” of the HOA.
The BOD has “full and final authority” over the HOA association; they are “not merely advisors” to the manager, other wisely known as the CAM. It’s regrettable that all too often the BOD abdicates to the manager and/or attorney who often are members of the same business trade group advancing their own self-agendas.
There is “no individual authority” of a board member to act and the president can only act based upon the authority set forth in the governing documents. Most presidents act, especially in the small HOAs, without board approval.
There is a “duty of obedience” to the laws and governing documents that all too often is ignored by not only rogue BODs, but by BODs who falsely believe to do so is in the best interests of the HOA.
 Peter F. Drucker, “Managementis the application of a set of principles relating to the functions of planning, organizing, directing and controlling an organization to effectively achieve organizational goals,” The Practice of Management, Harper Row, 1954.
 See “Restructuring HOAs – intents and purposes,” supra n.1.
 Michael E. Batts, Board Member Orientation, Accountability Press, 2011. It’s a short, to the point, and easy to read paperback. Batts has over 25 years on nonprofit boards and has served on several Washington panels.