By Deborah Goonan, Independent American Communities
In Illinois, the recent Appellate Court decision in Boucher v. 111 East Chestnut Condominium Association now stands firm. The Defendant’s appeal to the State Supreme Court was officially denied on September 26, 2018.
As explained in previous posts here on IAC, the Boucher case has significance for Free Speech and Due Process rights of residents in association-governed communities.
The implications, going forward, are that leaders of homeowners, condominium, and housing cooperative associations must recognize that residents have the right to criticize board members, management agents, and maintenance staff of their communities.
No longer can the association’s subjective rules against “obnoxious” speech or behavior be used to retaliate against the outspoken owner or resident who dares to complain about services (or lack thereof) provided by the HOA.
To be clear: Free Speech rights are not unlimited — the Appellate Court Opinion does not prevent an association from taking legal action against a member or resident who makes direct threats, or who spreads false statements about a board member or staff.
But association rules and regulations cannot be used to silence opponents of the board or management.
Although this case took place in Illinois, it is likely to be cited as precedent in similar cases from other states in the U.S.
Someone better tell California attorneys from the Community Associations Institute. An October 2018 legal forum is addressing free speech rights of association-governed, common interest communities. The session is entitled “Land of the Free? Not if you live in a community association?” I wonder what kind of ‘solutions’ will be offered to limit free speech?
In addition, when the association presents a citation of rules and covenant violation to one of its members or residents, it must be backed up by a formal written complaint from the accuser(s). A member has the legal right to see and hear evidence of complaints filed by board members, management, staff, or neighbors.
The member also has the right to review any evidence of alleged violations prior to attending a hearing with the rules committee, architectural committee, or the board. The board cannot use anonymous complaints or “so-and-so-said” statements to justify its right to impose penalties, including monetary fines.
Based upon actual, documented complaints, the owner or resident will have the opportunity to defend his or her actions, or to refute the violation altogether.
This basic level of due process procedure may seem like common sense, but, as Boucher v. 11 East Chestnut proves, sometimes condo, co-op, and HOA boards lack common sense.
However, a volunteer-led association should be able to rely upon good advice from its legal counsel. In this case, legal counsel provided what turned out to be bad advice, when she prevented condo owner Michael Boucher from obtaining a copy of the recording of his own disciplinary hearing with the condo association.
It should be noted that the condo association’s law firm (Kovin, Shifrin, and Nesbit) is already recommending that its client condo boards avoid recording executive sessions, and that minutes should be bare bones. So much for transparency. The knee-jerk reaction of HOA industry attorneys is to prevent their board clients from documenting anything that might be used against them in a future civil legal proceeding.
As U.S. courts continue the trend of supporting the Constitutional rights and freedoms of owners and residents of association-governed communities, trade group CAI will need to adjust its political stance accordingly.
Fair warning: Real estate and community association trade groups have been known to craft new legislation, or amend existing statute, in order to provide exceptions or loopholes to transparency, free speech, and due process.
Homeowner and shareholder members of associations, as well as housing consumer rights advocates, must see to it that industry trade groups do not attempt to undo case law or undermine individual rights. At the same time, state advocacy groups should consider amending their state’s laws — as Illinois did — to explicitly state that no private governance entity (association-governed community) can enact or enforce CC&Rs or rules that abridge First Amendment or due process rights of its owners or residents.
Illinois Supreme Court rejects defendant’s petition for leave to appeal in Michael Boucher, respondent, v. 111 East Chestnut Condominium Association, Inc., etc., et al., petitioners.
(See item 123807 on page 37.)
Illinois 765 ILCS 605/1 18.4 h
no rule or regulation may impair any rights guaranteed by the First Amendment to the Constitution of the United States or Section 4 of Article I of the Illinois Constitution including, but not limited to, the free exercise of religion, nor may any rules or regulations conflict with the provisions of this Act or the condominium instruments. No rule or regulation shall prohibit any reasonable accommodation for religious practices, including the attachment of religiously mandated objects to the front-door area of a condominium unit.