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THE NEVER ENDING RECORDS REQUESTS
By
Eric Glazer, Esq.
Published September 14, 2015
Everyone
knows that whether you live in a condominium or an HOA, your
association has an obligation to provide the unit owners access
to the association’s records. What is an association to do
however with the owner that won’t stop asking for access? Week
after week, month after month, year after year, the requests
don’t stop coming in. Is there anything an association can do?
Both the
Florida Condominium Act and the Florida Homeowner Association
Act provide that:
The association may adopt reasonable rules regarding the
frequency, time, location, notice, and manner of record
inspections and copying.
The
question is what is a “reasonable rule?”
In
Wanda DiPaola Stephen Rinko General Partnership v. Beach Terrace
Association, Inc. Case No. 2007-02-2785, the Petitioners
made 6 records requests over a five month period. The
association had a rule in place that required the owners to
submit a written request stating the purpose of the inspection
and provided that no more than two requests to inspect the
records would be allowed in a six month period. The arbitrator
made it clear that there is nothing in the statutes that
prohibits an owner from making repeated requests for access to
records. Moreover, although the statute does authorize the
association to adopt reasonable rules regarding the frequency of
record requests, the restrictions cannot substantially erode or
eliminate a unit owner’s right of access. Whether a rule is
reasonable depends upon the facts and circumstances of each
case. In the end, the arbitrator held that the rules in this
case place substantial and unacceptable restrictions on a unit
owner’s right of access to official records. The arbitrator
also held that an association cannot refuse access to official
records on the ground that access was previously provided.
Two years
later, in Rosado v. Fountains of Tamarac Condominium
Association, Inc. Case No. 10-03-1036, the Board adopted a
new rule limiting review of records to five files for each
scheduled records inspection. Files were arranged by topic.
The association was self managed and the records were stored off
site. Records inspections were only allowed every Tuesday
morning during normal business hours. In this case, the
arbitrator opined that the association could make things easier
on itself by storing the records electronically, but on the
other hand, some records need to be viewed in its original paper
format, like election records. In this case, the arbitrator
held that since the association has only 32 units, the records
should be able to be inspected in a two hour period, if they are
limited to five or fewer topics. Therefore, this rule does not
substantially erode or eliminate a right to access and is
therefore reasonable.
Two years
later, in Nevin v. Tennis Club McLoughlin Condominium
Association, Inc. Case No. 12-00-3369, the Petitioner made
10 separate voluminous records requests over a three month
period. On the date of the very first records request, the
Association amended the rules and regulations to limit unit
owner requests for association records to “one item per month.”
Therefore, the association did not comply with all of her
requests within five days as normally required under the
statute. The arbitrator held that the rule limiting access to
“one item per month” places substantial and unacceptable
restrictions on a unit owner’s right to official records and the
association has created an unreasonable restriction on her right
of access. In fact, the rule virtually negates the Petitioner’s
right of access to the records.
Before
your Board attempts to pass a rule limiting access to records,
you may want to get some legal advice, because if the rule is
found to be too restrictive, it could cost the association a lot
of money. In the Nevin case, the arbitrator awarded the
unit owner $5,000.00 in damages. In addition, an association
can be required to reimburse the owners all of his or her
attorney’s fees and costs.
So tell
me……does your community allow you reasonable access to the
association’s records?
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About
HOA & Condo Blog
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Eric Glazer graduated from
the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for more than 2
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decades and is the owner of Glazer
and Associates, P.A. a seven attorney law firm with offices in
Fort Lauderdale and Orlando and satellite offices in Naples,
Fort Myers and Tampa.
Since 2009, Eric has been the host
of Condo Craze and HOAs, a weekly one hour radio show that airs
at noon each Sunday on 850 WFTL.
See:
www.condocrazeandhoas.com.
He is the first attorney in the
State of Florida that designed a course that certifies
condominium residents as eligible to serve on a condominium
Board of Directors and has now certified more than 10,000
Floridians all across the state. He is certified as a Circuit
Court Mediator by The Florida Supreme Court and has mediated
dozens of disputes between associations and unit owners. Eric
also devotes significant time to advancing legislation in the
best interest of Florida community association members.
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