COLLECTION OF ASSESSMENTS CANNOT BE THWARTED BY SLAPP LAWSUITS The lifeblood of an association is the money it collects in assessments. Expenses for gardening, recreational facilities (pool, tennis courts), maintenance and administrative costs must be incurred to maintain and enhance property values. It is therefore very important that your association have a policy that is followed to enforce and collect delinquent assessments. When a homeowner is in arrears, know what to do, and when to do it. Let all your homeowners know what your collection policy is, and follow through by enforcing it. A recent court case dealt with a novel defense as to why the homeowner did not pay a $1,300.00 special assessment. The homeowner stated that the Board was retaliating against him for his opposition to the special assessment. He then brought a special motion under the SLAPP rules to have the case dismissed, claiming that the collection lawsuit was brought primarily to chill his valid exercise of his constitutional rights of freedom of speech. What is SLAPP? It stands for Strategic Lawsuits Against Public Participation. In Code of Civil Procedure, section 425.16, the legislature stated: . . . that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances.The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and this participation should not be chilled through abuse of the judicial process. This means that if you sue someone, and they claim that the lawsuit is an effort to "chill" their exercise of constitutional rights of freedom of speech, they can bring a special motion to have the lawsuit dismissed. They will win unless the court determines that there is a probability that the association will win. In the homeowner association context, is a board meeting of sufficient public interest to come under the protection of the 1st Amendment (i.e. no SLAPP lawsuits)? The court in this case, Foothills Townhome Association v. P.M.C. Trust Estate (1998) 65 Cal.App.4th 688, 76 Cal.Rptr.2d 516, said yes, but it went on to note that the homeowner could not show that he was singled out for enforcement of the assessment. (He even admitted that other homeowners had been pursued as well.) The court further stated that the Foothill's suit appeared to be no more than a "dogged" effort to collect the assessment. To allow the homeowner to avoid payment of the assessment simply because he disagreed with Foothills would mean that Foothills could never collect an assessment from him. The court concluded that they would apply the SLAPP standard if the Foothills suit was meritless. (A SLAPP lawsuit has been described as a meritless lawsuit filed primarily to chill the defendant's exercise of his constitutional 1st Amendment rights.) The court determined that the suit had merit, and awarded Foothills over $10,500.00 in attorney fees. RECOMMENDATION: Evenly and consistently enforce your collection efforts. The courts are upholding association's efforts to collect their assessments, realizing that homeowner complaints about "maintenance" and "the chilling effects" of collection lawsuits do not hold water.
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