This writing is not meant to scare homewners from expressing their political free speech rights regarding HOA governance issues, but to observe certain precautions.
I’m disturbed by the appellate court’s rejection of theappeal in Tarter v. Bendt with respect to limited purpose public figure immunity pertaining to complaints against an HOA. The homeowner’s complaints consisted of verbal statements, written communications, and a newsletter.
If Arizona’s HB 2052 (to be voted on by the full House), as a start, were law today I believe your outcome would have been favorable. In part, the bill
Allows a member or group of members to organize to discuss or address planned community business, including the following: a) Board elections or recalls; b) Potential or actual ballot issues; c) Revisions to the community documents; d) Property maintenance e) Safety issues; or f) Any other community business or actions. (Sec. 1, 2)
(See more, Arizona HB 2052 restores homeowner constitutional speech protections).
My nonlawyer view is that the case was a harsh application of the laws in an instance of an entity that functions for all intents and purposes as a local government; allowed to operate outside constitutional protections. It is not an “as usual” slander/libel situation but was treated as such in a memorandum decision.
The crux of the opinion was,
The parties stipulated that Mr. Tarter, as the HOA president, was a limited purpose public figure. Thus, the Tarters were required to prove that Mrs. Bendt’s defamatory statements were “made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
In spite of the homeowner’s loss, the case can serve as a hard lesson to other homeowners, warning them of the dangers of rambling against their HOA and board of directors, as the Court saw it. It serves warning that ALL relevant issues be brought before the court at trial as they may not be allowed in an after-the-fact appeal.
The Court summarized the defamatory statements, as charged by the HOA, consisting of:
The Tarters introduced evidence that Mrs. Bendt called Mr. Tarter “idiot,” “fool,” “spineless,” “disgusting,” “chicken shit,” “lowlife,” “low-class sneak,” “unethical,” “lazy,” “weak,” and “a complete fake” in front of fellow HOA members. . . . . Mrs. Bendt also disparaged Mr. Tarter’s legal education, insulted his alma matter, referred to him as a habitual liar, and unethical. Mrs. Bendt accused Mr. Tarter of violating his attorney ethical obligations, and wrote that he could be disciplined by the Arizona State Bar and investigated by the Attorney General (“AG”).
As the Court saw it, very important issues of compensatory and punitive damages were raised and found in favor of the HOA. The court allowed large sums, totalling $1,500,000, for nonmonetary damages as harm to reputation and emotionsl stress, and others, so beware!
Support HB 2052 to be soon voted in the House COW; date to be set.
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