While technology has many advantages, the internet and social media has led to a decline in human interaction between neighbors. For as little as $0.99, anyone can create a website. Many homeowners associations are behind the times and have not yet created their own HOA website, let alone registered for a HOA website domain name. Accordingly, when neighbors are not neighborly, and tempers flare, the creation of a dissident website (fake HOA website) using the name of the homeowners association is becoming an increasing popular way for members to voice their dissatisfaction. What should a homeowners association do when this happens?
Upset co-owners typically resort to the First Amendment as a basis for allowing a dissident website. The prevailing view is that the First Amendment only applies to government actors and not private homeowners association. However, this is not always the case as some courts have determined that homeowner associations are “quasi-governmental” entities. Accordingly, a board should check with its legal counsel to determine whether the First Amendment applies to private community associations in their state.
Even if the First Amendment is applicable, a dissident website frequently uses the name of the homeowners association, a domain name that includes the name of the homeowners association and, for all intents and purposes, gives the appearance of an “official” association website. While each case is fact specific, a homeowners association has federal and states trademark rights in its own name. Similarly, defamation claims can be made for statements that are not factually true. In short, free speech rights do not necessarily give a member of a community a right to utilize the association’s name and to say whatever they please without consequence.
- If the state does not apply the First Amendment to the Homeowners Association, the Association should look into adopting bylaws and/or rules and regulations that regulate “gripe” websites.
- Register the name of the Association as a trademark.
- Purchase all domain names that utilize the Association’s name.
- Send a cease and desist letter.
- File a complaint with the website provider.
- Sue for injunctive relief to remove the fake HOA website.
- Sue for damages caused by the improper website.
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