What is a Disparaging Comment?

According to Merriam-Webster, “disparaging” is defined as “belittling the value or importance of someone or something” (Merriam-Webster).

Therefore, a disparaging comment is any remark that criticizes, insults, or undermines your board, management, or fellow owners.

It can be as simple as:

Statement #1: “The board is incompetent.” (opinion)

Statement #2: “The treasurer is stealing funds.” (a factual accusation)

What is said matters because the first statement is a protected opinion; the second, if false, could be defamation. Understanding the difference is key to deciding how your association responds to disparaging comments.

What Disparaging Comments Are Protected?

A key Illinois case relevant to condominium associations and owners making disparaging comments is the 2018 Illinois Appellate Court decision in Boucher v. 111 East Chestnut Condominium Association. This ruling clarified that the First Amendment’s freedom of speech protections apply to Illinois condominium associations, despite not being government entities. Consequently, condominium boards cannot fine or punish unit owners solely for verbally criticizing or disparaging association personnel or management, even if the comments are harsh or insulting.

However, there are important limits to this protection: speech involving false statements of fact or “fighting words” (personally abusive language likely to provoke violence) is not protected. Associations can fine owners for such unprotected speech. Also, speech that is threatening or makes others fear for their safety is not shielded by the First Amendment and can be subject to sanctions.

In addition, Illinois courts have recognized that parties in a position of trust, such as board members, must act with integrity and fairness when dealing with others. In Boucher v. 111 East Chestnut Condominium Association, the Appellate Court underscored the importance of candor and good faith in interactions that affect another’s rights. For condominium associations, this principle translates into a duty to investigate alleged conduct fairly as, “…the duty of candor imposes on the board members an obligation ‘of full, fair, complete, and timely disclosure of material facts’ concerning all allegations against the owner that may provide a basis for imposition of a penalty.” Boucher, 2018 IL App (1st) 162233, ¶ 36 (quoting Han v. Yang, 931 P.2d 604, 615 (1997)).

How to Handle Disparaging Comments:

1. Assess whether the disparaging comment(s) are protected.

2. If protected, the board should not fine or penalize. Instead, engage and clarify misinformation publicly.

3. If not protected, the association must follow proper notice, hearing, and due process requirements.

4. Owners who are found, after proper notice and hearing, to have violated the Declaration, Rules & Regulations, and/or By-Laws by making disparaging non-protected comments may face fines, and in serious cases, legal action against them.

Disparaging comments will inevitably arise in community associations, so understanding which statements are protected and following proper procedures can help boards manage conflicts effectively. Consulting with legal counsel ensures that associations enforce their governing documents fairly, minimize liability, and maintain a respectful community environment.

For more information, contact Tressler LLP, HOA Law attorney Katerina Tsoukalas-Heitkemper at kheitkemper@tresslerllp.com. For more information about this article, contact Sayra V. Contreras at scontreras@tresslerllp.com.

About the Author

Sayra V. Contreras is an associate attorney working in the HOA Practice Group. Sayra concentrates her practice in litigation with a focus on representing condominium associations and common interest community associations in areas such as rule enforcement, interpretation of governing documents, review and negotiation of contracts, and collection of assessments. Click here to read Sayra’s full attorney bio.