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socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 37842
Experience:  Attorney and Real Estate broker -- Retired (mostly)
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A Homeowners Association from a property adjacent to ours

Customer Question

A Homeowners Association from a property adjacent to ours claims that approx. 10 years ago the previous owner made landscaping adjustments that disrupted the water run-off and is causing flooding issues in several homes below us. They have no proof, and whether is it from natural erosion or landscaping is debatable. They are demanding we pay $10K to restore a supposed berm to redirect water flow. I now have the home on the market and the Association is contacting realtors, telling their slanted side of the issue and making home unattractive to prospective clients. There is no basis for a lawsuit as their claim is absurd, but just the threat of potential problems is scaring away prospective buyers. What resource do I have, if any to stop the Association from harassing realtors/customers and to stop them from essentially extorting money from us
Submitted: 6 months ago.
Category: Real Estate Law
Expert:  Michael Gonzalez replied 6 months ago.

Hello and welcome to JustAnswer.

One potential option is threaten or file a slander of title action. Slander of title is a claim involving real estate in which one entity falsely claims to own another entity’s property. It can also be casting aspersion on someone else’s property business or goods. It can be defined as “a false and malicious statement, oral or written, made in disparagement of a person's title to real or personal property, or of some right of his, causing him special damage."

The essential elements of a slander of title cause of action "are the uttering and publication of the slanderous words by the defendant, the falsity of the words, malice, and special damages." [Donald M. Paterson, Inc. v. Bonda, 425 So. 2d 206, 208 (Fla. 4th DCA 1983)]In order to establish the elements of slander of title, the plaintiff must prove that the defendant has communicated to a third party a false statement disparaging title which has caused the plaintiff actual damage. [Residential Communities of Am. v. Escondido Community Ass'n, 645 So. 2d 149, 150 (Fla. 5th DCA 1994)

Malice is presumed if the disparagement of title to real property is false, causes damage, and is not privileged. However the presumption of malice can be overcome by the showing of privilege. A showing of privilege rebuts the presumption of malice and the plaintiff must then prove actual malice in order to recover in a slander of title action. The affirmative defense of good faith raises a privilege and creates a factual issue as to the existence of malice. Allington Towers Condominium N. v. Allington Towers N., 415 So. 2d 118 (Fla. 4th DCA 1982).

Please consult a local real estate attorney in your area to protect your rights and interests.

Expert:  socrateaser replied 6 months ago.


Different contributor here -- with a different answer.

1. Based upon your question, the location of your property is in Illinois. If so, then the Florida case law cited by the other contributor is generally inapplicable to your circumstances, because Illinois law is different.

2. Under Illinois law, slander of title is a false and malicious publication, oral or written, of words which disparage a person's title to property resulting in special damages. (Midwest Glass Co. v. Stanford Development Co. (1975), 34 Ill. App.3d 130, 339 N.E.2d 274; Home Investments Fund v. Robertson (1973), 10 Ill. App.3d 840, 295 N.E.2d 85; Restatement (Second) of Torts § 624 (1977).). The homeowners association is not slandering your title to property, because there is no claim that you are not the rightful owner. Rather the association is allegedly engaged in "trade libel" and/or "interference with prospective advantage."

3. A writing, to be [trade libel] per se, must contain a false statement which imputes to the plaintiff any of the following offensive categories: (1) the commission of a crime; (2) the infection with a loathesome disease; (3) the unfitness or want of integrity in performing the duties of an office or employment; or (4) words which adversely reflect on a particular party's abilities in his business, trade or profession. Bontkowski v. Chicago Sun-Times; Whitby v. Associates Discount Corp. (1965), 59 Ill. App.2d 337, 207 N.E.2d 482. This cause of action against the association is straightforward, because your business interests are being injured by the association's alleged contact with local real estate agents.

4. The elements of the tort of interference with prospective advantage require that the plaintiff must have a reasonable expectancy of entering a valid business relationship, and defendant must purposely interfere and defeat this legitimate expectancy, thereby causing harm to the plaintiff. (Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1973), 16 Ill. App.3d 709, 713-14, 306 N.E.2d 549. This cause of action is also straightforward, based upon your facts, as the association is allegedly interfering with your ability to market the property for sale.

5. Based upon the above, you would appear to have a very credible legal action against the association. It's quite possible that a firmly worded cease and desist letter from a local attorney could stop the association's conduct. And, if not, then a civil action for the above-described torts seems quite credible to me. If I practiced in Illinois, I'd take the case.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

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Expert:  socrateaser replied 6 months ago.

Hello again,

I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?

If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer – otherwise, I receive nothing for my efforts in your behalf.
Thanks again for using Justanswer!

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