Condo Media - May 2014 - 50

MANAGEMENT
Shapiro says, calling someone a pedophile
or accusing them of a crime, for example.
The comments would also have to be
demonstrably untrue, with either written
evidence to document them or witnesses
willing to testify to having heard them. In
those cases, but only in those cases, Shapiro says, "I would recommend litigation."
In most cases, however, she recommends
just "grinning and bearing it," because libel and slander suits are so difficult to win.
Like Shapiro, Wolf recommends a thick
skin as the best defense against the offensive and sometimes vicious comments
hurled at managers. "It's important not to
take it personally," he says.
Board members subjected to a barrage of personal criticism sometimes
seek or want to seek a restraining order
to stop the attacks, and in some extreme
cases, Thayer is sympathetic to those requests. Freedom of speech is broad, he
says, but it is not unlimited. "You can't
shout 'fire' in a crowded theater."
Actually, Shapiro points out, you can

shout fire in that theater - you just
can't claim your right to "freedom of
speech" as a defense against the resulting charges against you. Persuading a
court to restrain in advance actions that
haven't yet occurred is difficult, she says.
These cases are always "fact-specific,"
Shapiro explains. For example, a court
might approve a restraining order barring
access to the common area for a resident
whose disruptive actions prevented other
residents from using the space. A board
might also win a restraining order against
someone who has actually threatened
physical harm, but the potential harm
must be clear and significant.
When the board of an association
Wolf manages asked their attorney to
seek a restraining order against an owner who had thrown snowballs at a snow
removal truck, Wolf agreed with the
attorney that the effort would likely be
futile and only exacerbate tension with
the dissident owner. When the board
insisted on pursuing the restraining

order, Wolf told them not to include
him. "I didn't want to be involved," he
explains.
Even when the behavior is more serious
than snowball throwing, Shapiro tells clients, "Just because I request a restraining
order, there is no guarantee a court will
approve it," or will do so quickly enough
to provide the relief the board is seeking.
She once sought a restraining order on
behalf of a board that wanted to prohibit
an accused rapist from moving in with
his parents, who owned a condominium
in the community. The judge took the
request under advisement, she recalls,
"and that was 20 years ago." The accused
rapist has since been convicted and served
his sentence, and the judge has yet to rule
on the request. The law, Shapiro notes,
"sometimes moves with glacial speed." CM
Nena Groskind is president of
eContentplus, providing editorial
content for websites, print and electronic
newsletters, and magazines.

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