Despite the fact that legislative progress has been made in
getting owners access to association records, there is still
confusion as to whether or not associations and/or management
companies can charge an owner for such access and for
photocopies of the records. Let’s address the law for both
condominiums and HOAs.
For condominiums:
One way of potentially making it
easier on the association and the owners to provide and obtain
access to records is to post them on a secure website that only
owners have access to. In fact, Florida Statute 718.111(12)
states that the association may offer the option of making the
records available to a unit owner electronically via the
Internet or by allowing the records to be viewed in electronic
format on a computer screen and printed upon request. Please
note however that the unit owner has the option to receive the
records in this fashion, if the association offers it. If the
unit owner wants to inspect the physical records, they can still
do so and reject the association’s offer to provide the records
electronically.
The right to
inspect the records includes the right to make or obtain copies,
at the reasonable expense, if any, of the member. In other
words, the unit owner has to pay for the copies if they ask the
association to actually make copies.
However, who needs
the association to make copies? The law provides that an
association shall allow a member or his or her authorized
representative to use a portable device, including a smartphone,
tablet, portable scanner, or any other technology capable of
scanning or taking photographs, to make an electronic copy of
the official records in lieu of the association’s providing the
member or his or her authorized representative with a copy of
such records. The association may not charge a member or his or
her authorized representative for the use of a portable device.
So, the condo statute is clear. The association can’t charge
anything for access to records if the owner will be making their
own copies. It’s cut and dry.
For HOAs: Go figure…..the law doesn’t protect
owners in a homeowner association as much as it does unit owners
in a condominium. I would say that’s a familiar theme by now.
Believe it or not though, things are better now than they were.
Up until a few years ago, there was basically no limit on what
an HOA can charge for access to association records. Homeowners
were getting charged hundreds of dollars for just a few
photocopies. Jan and I helped change that by lobbying for some
reasonableness.
Unlike in a condominium,
the association has the option of
making the records available to a parcel owner electronically
via the Internet or by allowing the records to be viewed in
electronic format on a computer screen and printed upon request.
In a condominium, it’s the owner who has the option of viewing
the records electronically instead of physically.
In an HOA, if the association has a photocopy machine available
where the records are maintained, it must provide parcel owners
with copies on request during the inspection if the entire
request is limited to no more than 25 pages. Just like in a
condominium association, the homeowner’s association must allow
a member or his or her authorized representative to use a
portable device, including a smartphone, tablet, portable
scanner, or any other technology capable of scanning or taking
photographs, to make an electronic copy of the official records
in lieu of the association’s providing the member or his or her
authorized representative with a copy of such records. The
association may not charge a fee to a member or his or her
authorized representative for the use of a portable device.
The next part is where the condo and HOA statute really differ.
The homeowner’s association may impose fees to cover the costs
of providing copies of the official records, including the costs
of copying and the costs required
for personnel to retrieve and copy the records if the time spent
retrieving and copying the records exceeds one-half hour and if
the personnel costs do not exceed $20 per hour. Personnel costs
may not be charged for records requests that result in the
copying of 25 or fewer pages.
So, by way of example, let’s say that a unit owner wants copies
of the association’s bank statements from 2013. The management
company tells you that the records are stored in a warehouse and
they need to send personnel to the warehouse to find them and
retrieve them and that it will take four hours to do all this.
If all of the banking records exceed 25 pages, the first half
hour of the manager’s time is on the house. However, the other
three and a half hours can be charged at $20.00 per hour.
Someone explain to me why the law should allow condo owners to
get this for free, but require an owner in an HOA to spend
$70.00.
In any event, these are the rules and most
importantly, failure to provide timely access within ten days
subjects the association to a penalty not to exceed $500.00 and
payment of the owner’s attorney’s fees and costs. A condo owner
denied access to the official records has the right to
immediately file for arbitration but an HOA owner has to go to
pre-suit mediation first and if mediation fails, must go through
the expense of filing a lawsuit against the association.
