Farrah Esquer, CMCA, AMS, PCAM Cardinal Property Management, AAMC
Sandra L. Gottlieb, Esq., CCAL SwedelsonGottlieb
If you are like most people, you use the Internet or social media in your daily life on a regular basis, either personally or for business. From paying bills online to keeping up to date with world and entertainment news via numerous social media outlets, many of us would be lost if we were to lose the holy grail of our Internet connection. If the average person uses the Internet so regularly, should your community be using these online options as well? A definite MAYBE! With technology and social media changing so rapidly, it is often difficult for a community association to keep pace with the newest and most hip forms of communication. While many communities may already be using websites and social media, there are still pitfalls and legal concerns that should be addressed, proactively, to protect the entity and its board of directors. This article explores both the benefits and challenges of an association’s internet presence and the planning and decisions that should occur before plunging into the ever-changing digital world. Before making a decision as to whether the association should have a website and/or social media presence, first consider the demographics of the community and the message or image that will be conveyed. The decision to have an online presence can be different for each community. Are the community members asking for more online options? Does the association have extensive recreational facilities or other amenities unique to your community? Remember, the association is a corporation and as such, the board of directors should consider the image or “brand,” as well. Also consider who will be maintaining the website and/or social media sites. If the board intends for the management company to maintain the sites, be sure to address this obligation in the management contract, including association protections for the ownership of the sites, and be sure that the manager or company is comfortable maintaining these sites. The board may also consider a board member or other community volunteer, or even a third-party provider, to create, update and maintain the various sites. There will likely be a charge to maintain the sites whether the work is performed by a third party vendor or by the association’s managing agent. A fee for these services is warranted and can be budgeted, considering the brand of the corporation. Websites can be a beneficial tool to provide communication and resources to the membership, if used properly. The association may choose to include online assessment payment options on the website, as well as the association governing documents, non-compliance reports, and a mechanism for maintenance request submittals. The website can also be used to provide updates to the membership on upcoming or ongoing projects and schedules, including maintenance or construction work, and to notify residents of other community events, such as annual meetings, community garage sales, etc. Documents can include meeting agendas, community newsletters, rules and regulations, meeting minutes (general session and committee minutes, as applicable), CC&Rs, Articles of Incorporation, and Bylaws. We strongly recommend that documents such as minutes, CC&Rs, Article of Incorporation, and Bylaws be watermarked with either “Draft” or “Not for Escrow Use.” The purpose of this watermark is to ensure that official documents are requested through the normal escrow process and to ensure that the documents presented in escrow are complete. Websites should not be used in place of current delivery methods that are required by the Davis-Stirling Act. For example, Civil Code Section 4045 provides that certain documents can be sent by “general notice” or “general delivery.” This code provision includes that the association can post “the printed document in a prominent location that is accessible to all members.” The question becomes: does posting a notice to the website constitute proper notice under this section? No, it does not at this time because the code specifies that the notice must be a “printed document” and that it must be placed in a “prominent location.” However, posting the notice to the website, in addition to posting the printed document on-site, complies with the Civil Code and provides ease of access to those who wish to view the document electronically on the association’s website. An association website can also be used to reflect a positive image of the community and to show off the brand attributed to the community along with favorable aspects of the community, such as the common area facilities – pool, spa, clubhouse, or other amenities that make the community unique and desirable. In this way, a well-maintained and planned website can potentially increase property values. With the benefits of websites also come potential challenges and legal pitfalls. If the website is used for online payments, even if through a third-party provider, it is important to ensure the site is secure, to the extent possible, to prevent identity theft. Additionally, board members should be cautious when opening up a message board or other posting board on the association’s site. Message boards can quickly become a place for posting of disparaging comments, which could potentially place the association in the midst of a lawsuit for defamation if it does not act quickly to demand the removal of the offending comments. There have been a number of cases in California in recent years that have shown that, even if the association is successful in a lawsuit with an owner regarding defamation, infliction of emotional distress, or other claims related to the use or misuse of association internet resources, the benefits of these platforms may be far outweighed by the potential costs to an association if they are misused. For this reason, it is highly suggested that message boards or other similar posting boards not be available on a community website. Another potential pitfall can occur when, through use of a website or social media account, the association unintentionally burdens itself with the requirements of Americans with Disabilities Act (ADA) compliance by inviting the public to the community. How can this happen? Does your community use the clubhouse as a polling place for the community and surrounding areas? And do you use the association website to announce the polling place to the community? If so, this could potentially require the association to comply with ADA regulations since the public is invited into the community. As a note, “public” as used here does not mean personal guests, family or invitees of owners. For these reasons, the association should consult with the association’s legal counsel to address any potential legal pitfalls associated with the community website, both before it is launched and when there is a stated claim against the association. After the board has evaluated the issues referenced above, the board will need to identify who will be responsible for maintaining the site. The next step is to decide in advance what will be posted to the website and who has the authority to post to the website. Sample recurring items that should be updated on the website would be meeting agendas, meeting minutes, and newsletters. These documents should be updated regularly, in addition to the association’s documents such as rules and regulations, architectural guidelines and application form, etc. The board should also consider having a standing policy that any notice that is sent by “general delivery” or “general notice” to the community should be added to the website. This may seem like a fairly simple task, however what happens when a disgruntled committee or board member demands that their statement be posted to the website? Setting the standard postings in advance with a requirement that all other items require board approval at a noticed board meeting can help avoid placing the website administrator in a difficult situation trying to balance requests from owners with competing interests and avoid airing the association’s dirty laundry to the community. Remember, online postings should be positive and used as a tool to communicate information to owners and provide resources to the community. The association needs to ensure that the website is kept up to date and timely. There is nothing worse than a website was last updated two years ago. Association members will quickly become disinterested in a site that provides no value, which makes it difficult to re-gain interest. While websites generally are the most common form of online presence for communities, other social media sites like Facebook, Twitter and Instagram have also become options for increased communication to owners. If you use these social media sites in your personal life, you are probably familiar with the negative postings and rants that can sometimes be overwhelming. The same cautions and predetermined posting rules for websites apply to social media sites, as well. However, postings change more quickly on social media than a website page. The postings that can be made by others to, for instance, a Facebook page must be addressed quickly by the association if they are negative in nature. The party authorized by the board to maintain and monitor the site should have appropriate notifications in place so that postings can be monitored and addressed promptly. Additionally, if the board will be posting photographs from a community event, a disclaimer should be included with the event invitation notifying the residents that an association photographer will be taking pictures of the event and posting to the association’s website. This will allows guests the opportunity to notify the photographer if they do not want their pictures posted. There are many factors to consider when deciding whether to launch and maintain an association website or social media presence including the association’s brand or image, maintenance responsibilities, security issues, and potential legal pitfalls like defamation and harassment claims. Even if the association does not intend to establish web or social media presence, the board should consider claiming the association’s name for websites and social media accounts to prevent other parties from opening sites potentially leading to their posing as official association communications. Those domain names and pages should be owned and controlled by the association, when possible, rather than individual volunteers. Always consult with legal counsel before making the leap into the digital world because once association content is on the Internet, it may be there forever. Reprinted with permission from Connect Magazine, Issue Four 2016, a publication of the Community Associations Institute of Greater Inland Empire Chapter. Reprinted with permission from O.C. View, January/February 2017 issue; copyright by CAI, Orange Country Regional Chapter, all rights reserved.