Tag: malice

Illinois Defamation Law: The Quick and Dirty

Defamation is a false, factual statement published to a third party reader or listener.  Illinois recognizes two types of defamation – libel (written) and slander (oral) and the same rules apply to both.

A defamation plaintiff must present sufficient facts establishing (1) a false statement about the plaintiff, (2) that’s not privileged, (3) to a third party; and (4) that caused damages.

A defamatory statement is per se (meaning no proof of specific damages are required)  defamatory when it’s harmful on its face.  Defamatory per se statements are those that (1) impute that a plaintiff committed a crime; (2) impute a plaintiff is unable to perform or lacks integrity in his employment; or (3) statements that plaintiff lacks ability or that otherwise prejudices the plaintiff in her profession.

Only statements that are factual (“he stole $1,000 from me”) – capable of being proven true or false – are actionable; opinions are not (“I think he’s a nut job!”).  Calling someone a crook, a traitor, trashy, a rip-off artist are examples of non-defamatory statements of opinion under prior Illinois cases.

Even per se defamatory statements are not actionable if they are reasonably capable of an innocent construction.  Under the innocent-construction rule, a court considers a statement in context and gives words their natural and ordinary meaning.  If a statement in context is reasonably susceptible to a nondefamatory meaning, it should be given that meaning.

Truth is a defense to defamation.  The challenged statement doesn’t have to be completely true; it’s enough that it’s ‘substantially true’.  A defamatory statement is also not actionable where it’s subject to a privilege.  Two privileges the law recognizes are absolute and qualified privileges.

Qualified privilege applies where as a matter of law and general policy, the defendant has an interest in or duty to make the communication such that it’s privileged.  A classic example of a qualified privilege statement involves a corporation’s statement made while  investigating an employee’s conduct.

Once a qualified privilege attaches, the plaintiff must prove that the defendant intentionally published the material knowing it was false or displaying a reckless disregard as to it truth.  “Reckless disregard” means the speaker made a statement aware that it’s probably false with serious doubts as to its truth.

Source: Coghlan v. Beck (http://www.state.il.us/court/opinions/AppellateCourt/2013/1stDistrict/1120891.pdf

Condo Assessment Liens And Slander of Title

Section 9 of the Illinois Condominium Property Act (765 ILCS 605/9) allows a condominium association to place a lien on a unit for unpaid assessments.    

But what if an association records an inflated assessment lien against a unit owner? Does the unit owner have any recourse? 

The First District answered these questions in Kurtz v. Hubbard, 2012 IL App (1st) 111360.

The plaintiff, a Gold Coast condo unit owner, filed a multi-count action against her condo association alleging slander of title and the tort of presenting someone in a false light when the association sued for possession of plaintiff’s unit and recorded a lien two weeks later.

The plaintiff sued the association, alleging the lien was false and impaired the unit’s marketability and placed her in a false light before the community since the lien was a public record.

The lien stated that the plaintiff owed over $15,000 in delinquent assessments.  Plaintiff eventually paid off the lien (under protest) and then filed suit.  The  trial court dismissed all claims on the association’s 2-619 motion.  Plaintiff appealed dismissal of the false light and slander of title claims.

The First District reversed the dismissal of the slander of title and false light claims.  It first held that unlike court pleadings (which are absolutely privileged), assessment liens don’t merit th same level of protection.  Assessment liens are only qualifiedly privileged.  A qualified privilege can be defeated by a showing of malice.  Malice means knowledge of a statement’s falsity or a reckless disregard as to its truth or falsity. ¶¶ 10, 22.  Otherwise, the court wrote, “unscrupulous condominium associations could record fraudulent assessment liens against homeowners with impunity.”  ¶ 18. 

Yeah?  So?

Kurtz teaches important lessons for associations and unit owners alike.  It vindicates the power that associations have to record liens and sue to evict defaulting unit owners.  But the case also cautions associations to lien the proper amount.  Otherwise, the owner may have valid slander of title and false light claims against the association.  However, the unit owner will still have the burden of proving the association’s knowledge of the lien’s falsity or reckless disregard as to the lien’s accuracy.