Old Colony Village Condominium v. Preu, Massachusetts Appeals Court No. 10-P-875 (Oct. 31, 2011). Click here for link to full text of case.
I love when constitutional law intersects with real estate law. It’s rare, and full of drama. A recent decision by the Appeals Court considered a condominium unit owner’s unalienable right to complain, moan and kvetch about condominium management. The First Amendment and the unit owner won this battle.
Doggy Doodie Bags, The Bird & Signs
The case is right out of the Seinfeld episode where Jerry’s dad, Morty, is embroiled in a condo trustee election battle at the “Del Boca Vista” condominium project in Florida. Mr. Preu and the condominium management had a history of, shall we say, bad blood between them. Mr. Preu ultimately went on a rampage, placing in the common area bags containing dog feces and labeled with the name of board president Gerard Ritzinger, apparently in response to Preu’s belief that Ritzinger had allowed his dog to defecate in an area in which it was forbidden. He gave the middle finger to condo trustees walking through the hall and to security cameras. He wrote nasty memos on his condo fee checks. He also obstructed common area fire doors. Lastly, he posted signs in the common area and a note on a unit owner’s door about the cleanliness of the condominium.
The trial judge found that the bag of doggy doo-doo and messing with fire doors violated the condo rules, but that the posting of signs, flipping the Bird, and the nasty memos were protected speech under the First Amendment. The Appeals Court only considered the free speech issue.
Check Your Free Speech Rights At The Door?
The Court held that condominium unit owners do not check their First Amendment rights at the condominium door. “A condominium association does not have as free a hand in restricting the speech of unit owners in the common areas in which those owners share an undivided property interest as another property owner might in dealing with a stranger on his or her property,” the court held. Accordingly, the court ruled that Preu’s posting of signs, flipping the middle finger and nasty memos — although not the most civil of behaviors — were protected First Amendment speech which could not be punished under condominium by-laws and rules.
Lessons to be Learned…
So what’s the take-away from this case?
For prospective condo buyers, know what you are getting yourself into before buying a condominium unit. Ask for the condo meeting minutes going 3 years back to see whether there are a history of internal dysfunction and disputes like the Old Colony Village Condo.
For condominium trustees and management, the lesson is a bit tougher. While you don’t want to put up with a lot of over-the-top cr*p from unit owners, think twice about starting World War III litigation like this case. The only person in this dispute who made out well is the condo board attorney, as this dispute easily ran over $25,000 in legal fees through a trial and an appeal. Was that a solid investment of condo funds by the board? Over dog poop? Probably not.
Richard D. Vetstein, Esq. is an experienced Massachusetts Real Estate Condominium Real Estate Attorney. For further information you can contact him at [email protected].