Associations and Communications Technology
February 28, 2014
Following up on our last post on HB2060/SB2198, the House version of the bill has been taken off of notice for the legislative calendar, while the Senate version, as of February 19th, was assigned to a subcommittee.
Let’s switch from the legislative update to an interesting development near Nashville. A lawsuit has been filed in the U.S. District Court of the Middle District of Tennessee, Nashville Division, involving a Tennessee homeowners association. As noted before, it is rare to see associations in federal court. Associations normally are not in federal court for jurisdictional reasons. This case, styled: DeCuyper v. Flinn, et al., Case No. 3:13-cv-00850, involves the alleged violation of the federal Electronic Communications Privacy Act, 18 U.S.C. § 2510, et seq. (the “Act”), amongst other matters. Since the interpretation of a federal statute is at issue, federal jurisdiction is proper.
The heart of this case appears to involve a failed attempt to amend an association’s CCRs. At the meeting of the Association at which the amendment was discussed and voted upon, matters appear to have gotten out of hand. Without delving too much into the facts, what stands out of interest in this case is the allegation that the Board intercepted, blocked, obstructed, or otherwise disclosed emails of the Plaintiff. Under the Act, such violations can be punishable by imprisonment, severe fines, civil liability for damages, punitive damages, and attorney’s fees. Apparently, the Association provided its members access to a central email server system and allowed each member an email address. These email addresses could be used by members to send and receive messages. The allegations in the lawsuit are that the Board violated the Act.
In our representation of associations, we are seeing associations become more and more tech-savvy. Associations have websites, social media accounts, and online forums. Some associations, such as the one involved in the litigation discussed above, provide email addresses to their members. The concern here is that there are federal and state laws regarding the treatment of such communication. Associations certainly should embrace technology, but they should exercise care with regard to how such technology is used.
Tags: association, board of directors, bylaws, CCRs, condominium, condominium association, condominium unit, Declaration of Covenants Conditions and Restrictions, HOA, homeowner, homeowner association, homeowners association, Horizontal Property Act, laws, Master Deed, non-profit corporation, Tennessee, Tennessee Condominium Act, tn