In a recent case out of Orleans, Massachusetts, the trial and
appeals court found that an owner's right to free speech
trumped the by-laws of a condo association.
Steven Preu, an owner at Old Colonial Village Condominium
Association, had a long-standing history of erratic and disruptive
behaviour, which translated into a strained relationship with the
board. Things came to a head when Mr. Preu believed that the
president of the board allowed his dog to defecate in a
'no-dumping zone' of the common elements. In response, Mr.
Preu left bags of feces in the no-dumping zone and labeled these
bags with the president's name. On other occasions, Mr. Preu
flipped-off management (i.e., the one finger salute), wrote
inappropriate comments on his monthly common element fee cheques,
posted signs in the condo stating that it was dirty and wedged open
The condo association subsequently brought an action against Mr.
Preu, claiming that his actions violated the by-laws of the condo.
The court shockingly found that not all of Mr. Preu's actions
violated the by-laws of the condo association. The opening of fire
doors and placement of bags of dog feces in the common elements
were considered breaches of the by-laws.
However, the inappropriate notes, signs and hand gestures were
not. The court found that some of Mr. Preu's actions were
considered to be "pure speech" and covered by the First
Amendment (i.e., freedom of speech). The condo association appealed
the trial court decision, but to no avail. The appeals court, more
or less, agreed with the decision of the trial court.
We should point out that the above-noted case was decided in the
United States. A different result may have occurred if the case was
tried in a Canadian court. That said, the case demonstrates the
need to balance the fundamental rights of owners to express their
displeasure with the board with the social responsibilities of
residing in a shared space. Boards should be mindful that owners
have the right to publicly express their discontent with the board
and management of the condo, however, this right cannot be invoked
carte blanche. If an owner's behaviour is defamatory or
constitutes harassment (and a harassment rule has been created),
the board may have recourse to address this behaviour. Each
situation should be dealt with on a case-by-case basis, but the
rule of thumb is, if an owner gives you the one finger salute, do
not return the favour.
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