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(And How Can You Tell)

By: Roy Helsing

It is definitely the era of social media. Facebook, Twitter, LinkedIn and countless other choices keep many of us glued to our smart phones, tablets, and desktop computers almost 24/7. Like it or hate it – it is part of life for many, and certainly allows for swift and efficient communications. If not handled carefully, however, in some instances use of such media can have more potential downside than positive value. Your Homeowners Association falls into that category, as do many other private clubs and organizations.

There is nothing wrong with social media per se for your homeowners association. Where it becomes a bit tricky is when access is not restricted to members only. The primary purpose of your homeowners association is to protect property values. Your association is a private “club” – for lack of a better term – and membership, by law, is determined by having your name on the grant deed. Some of the available public social media platforms do not allow for filtering by membership. For example, Neighborhood.com does a pretty good job of checking to confirm that the user actually lives where they say they live – but that does not in any way equate to membership. Renters, spouses not on the grant deed, and other members of a household in your community are NOT members of your association.

Other sites (Google® Groups, Yahoo® Groups, etc.) do allow for a host to set up a group, and presumably that host has a way of determining that those they give access are actually members of your association. However, more often than not, the host of the group may not be able to determine who is on all the grant deeds. Even if they are given a weekly membership list, it would not include those people who have asked to opt out of those lists. Basically, unless you have a method of ensuring that those with access to the media are truly members of your association, all homeowners in the association are at potential risk for the actions of those members who host and take part in the list – even those homeowners who are not participating.

What is the potential risk if you do not operate your social media properly? It can come in a variety of ways.

Publishing Private Information – When associations broadcast private information (posting financials, draft minutes, or other membership information) in a public forum, there is always the chance that that information may be used by outsiders. For example, telling the world you have a million dollars in the reserve fund makes you a target for cyber theft. (I know of two associations hit by cyber theft for significant monies in the past year. Does your Board carry cyber theft insurance?)

Diminution of Property Value and Loss of Sale – Social media sites tend to develop long threads carrying the discussions of unhappy homeowners. In many cases, the homeowners are unhappy simply because they didn’t believe the governing documents were enforceable. Often there are discussions based on rumor rather than fact. Sometimes the discussions can get heated enough that nasty (and even libelous) words are written. If the social media can be mistaken as “official” – something that association is participating in or sponsoring – the liabilities can flow through to the individual members. What liabilities? Loss of sale claims, defamation claims, and diminution of property value claims are but a few that come to mind.

Increased Management and Operating Costs – Otherwise known as increased dues! Far too often, the discussions on these media sites are believed by homeowners to be official association media (and again I am talking about lists that are not restricted to the membership). Because they are not, there are no Board members or anyone from management monitoring (or at least there should not be. If Management or the Board are taking part, the media becomes official and then all the liabilities of the first two categories come into play.) Because nobody with the truth is able to influence the discussion, neighbors get all worked up about rumors or false information. Here are some recent experiences. One association we manage went an entire weekend with no hot water. There were dozens and dozens of posts getting increasingly irate because there was no hot water! However, no one bothered to call the management emergency number … because they thought the social media they were on was how they were supposed to let management or the Board know about issues! Another relatively large association had to restart an election at significant cost because campaign activity was being conducted. Although the list was a private list, far too many in the community thought it was an official list!

How To Do It Right

So, is social media bad for your association? In my opinion, absolutely NOT. Social media is excellent for any organization if used properly, and that includes homeowners associations. Anything that increases valid communications and stops rumors is good. It is, however, important to be careful in how you use it. Let’s talk about using social media in a way that is helpful to your association and minimizes risk.

1. Control Access to Membership – Make sure that only members (those on the grant deed) have access to your social media. Make sure there is frequent scrubbing of the list (ideally daily) as homeowners move in, move out, and do quitclaims concerning ownership. Your management company should be able to assist you with this.

2. No Personal Attacks – Oh my gosh – censorship! NO, I do not mean that. I recently was a monitor for a very large social media site (not in this industry) that was getting close to litigation based on member comments. It was fixed with one rule – NO PERSONAL ATTACKS. You can disagree, complain about your Board, complain about management, allow whatever dialog homeowners want on whatever subject they want – but remove any posts that include personal attacks. It is one thing to say to someone “I disagree. You are wrong and this is why…” That is good dialog. However, when the conversation goes “You must be an idiot…” – it is time to pull the post and ask the poster to restate his or her objection without the personal attack. That should get rid of most of the defamation issues, although simply lying about someone or some company and what they have done can still get you in trouble – so there is always some risk, but at least it is not available to the entire internet world.

3. Board Members Need to be Careful – My advice would be to not allow Board members more than read-only access. The danger here is that the Open Meeting Act prohibits Board Members from discussing association business except in noticed meetings. It is far too easy for a majority of the Board to get involved in a conversation on social media and then violate that law. In addition, Boards speak with one voice and only after they have reached a decision. If no decision has been reached, no Board Member has the right to speak for the Board unless that right has been specifically delegated. All these problems are avoided if Board Members simply monitor.

4. Provide for an “Ask the Association” Forum – Management will typically not monitor the forums simply because the time it would take would lead to unrealistic management fees. Provide for a moderated forum where homeowners can ask a question with applicability to the membership and the answer can be published for all to see. This is a good solution for getting rid of some of the rumors and false information that tends to grow and fester in the non-moderated forums.

5. Denounce “Unofficial Forums” – This is the United States and we have first amendment rights. Homeowners that want to start a forum on anything have the right to do so. However, if your membership is starting to feel this other media IS the association’s media, you need to distance the association from it and do what you can so the membership knows it does not speak for the association and their concerns cannot be addressed there. One suggestion is to ask those that are sponsoring or hosting it to put a disclaimer such as “Not associated with the Homeowners Association of the same name” or something similar clearly on their site. If that doesn’t work, you may want to ask the association’s attorney what steps can be taken to protect the association. The association’s name is unique and you may be able to get the site to change its name slightly.

6. Get Legal Advice – Most importantly, spend the time to have the association’s attorney review what you intend to do and advise you on where you have risk and what you may do to reduce it. By definition, there is still some risk involved if you host a social media site. At some point, you need to weigh the risk versus the gain and that should be done through your attorney.

Special Comments Concerning Elections – One final caution, if you have official social media make sure you both check your election rules and seek a legal opinion on how the list may be used during an election – or if it can be used at all. If you (or someone else) has an unofficial media site that either has had Board Members posting to it, or is active enough that many members feel it is “official” I would give the same caution but the situation is more difficult because the Board cannot turn the site off (or restrict comments) in a way that it does not conflict with the Civil Code and/or your rules on HOA elections. This month alone I have heard of three associations that have had to restart their elections because of comments made on “unofficial” social media because it was determined to have defaulted to official (albeit uncontrolled).

The bottom line, social media can help your association. It can provide for communications among members. It can stop rumors. It can help get the word out. But HOAs like any other organization need to control who has access and avoid defamation and other legal issues. If your community has “unofficial social media” do what you can to distance the association from the liabilities that it can cause – and that starts with Board members not participating. If you want to have association social media – do it with thought and proper controls over membership and content (without censorship).

Articles are for advertising and general information by The Helsing Group, Inc. They are not intended to provide legal advice, but rather reflect our opinions as Community Association managers and Consultants. Readers should not act on issues raised in our newsletters or websites without consulting legal counsel.

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The Helsing Group, Inc.

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