Board Retaliation &
SLAPP Lawsuits

THE PATTERN

Retaliation has a playbook.

An owner notices something wrong. Common charges have risen sharply. The reserve study is missing. Board minutes are incomplete. A contract was awarded to a board member's company. The owner asks. The board deflects. The owner asks again, in writing, citing the bylaws or statute. The board responds with hostility.

From that moment forward, the owner's relationship to the building changes. Alteration applications that previously took two weeks now take six months. Move-in fees, sublet fees, and storage transfers that were waived for others are enforced strictly. Building staff become cold. A neighbor mentions that the board's attorney has been asking questions about the owner's renovation. Then a complaint letter arrives -- about noise, about overgrown plants on the balcony, about a rule the owner has never heard of. Then a fine. Then another fine. Then a lawsuit.

This is the playbook. It is consistent across buildings. It is consistent across boroughs. It does not depend on the owner being objectively wrong. It depends on the owner being inconvenient.

WHAT NEW YORK ANTI-SLAPP LAW DOES

Civil Rights Law §§70-a and 76-a, expanded 2020.

In 2020, New York significantly expanded its anti-SLAPP statute. Civil Rights Law §76-a now applies to any communication "in a place open to the public or a public forum in connection with an issue of public interest." Civil Rights Law §70-a permits the defendant in a SLAPP suit to recover costs and attorney's fees, and to seek damages, when the underlying suit was substantially without merit and intended to retaliate against protected speech.

Several New York cases have applied the anti-SLAPP statute to disputes between condo or co-op boards and owners. Where an owner's speech concerned building governance and was directed to other owners, regulators, or the public, courts have held the speech falls within the public-interest definition.

The remedy includes mandatory fee-shifting. If the suit was meritless and retaliatory, the defendant can recover what was spent defending the case. In theory this should deter SLAPP filings. In practice, fee recovery happens only after the defense is paid for upfront. Owners without resources to defend cannot reach the fee-recovery stage.

PROPOSED FIX

Defense funding, board member personal liability, and pre-suit notice.

• Owner defense fund. A state-administered fund (built from civil penalties against boards and managing agents found to engage in retaliatory practices) provides defense funding to owners sued in plausible SLAPP cases. The owner applies; an independent panel evaluates; defense costs are advanced.
• Pre-suit notice and review. Any board lawsuit against a unit owner regarding governance, records, communications, or speech requires written pre-suit notice to a regulatory authority. The authority can decline to act, but the notice creates a public record and a chance to deter clearly retaliatory filings.
• Personal liability for retaliatory authorization. Board members who vote to authorize a lawsuit later determined to be a SLAPP face individual civil penalties. The penalty cannot be reimbursed from common charges or D&O insurance.
• Burden-shifting in retaliation findings. When an owner has filed a documented complaint or made a public-interest communication, and is subsequently subjected to adverse board action, the burden shifts to the board to prove the action was independent of the protected speech.
• Override of business judgment rule for retaliation findings. A regulatory authority finding of retaliation is binding on subsequent court proceedings. The board cannot re-litigate the issue under business judgment cover.