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LIMITING ACCESS TO RECORDS – IT AIN’T EASY.
By
Eric Glazer, Esq.
Published May 3, 2021
Almost every association I ever represented complains about the
community pest who won’t stop asking for access to records. Can
the association stop it or at least limit it?
Florida Statute 718.111 (12) states:
The association may adopt reasonable rules regarding the
frequency, time, location, notice, and manner of record
inspections and copying. The failure of an association to
provide the records within 10 working days after receipt of a
written request creates a rebuttable presumption that the
association willfully failed to comply with this paragraph.
Even though the
statute allows for rule making, arbitration case law suggests
that most rules that associations make go too far and are struck
down routinely as being illegal.
With respect to all of the requests for
access
to
official
records,
it is noted that while
section
718.111(12), Florida Statutes,
allows an association to adopt
reasonable rules
governing owners'
access
to
official
records,
that provision cannot be construed as allowing an association to
adopt
rules
or set
forth requirements that would substantially erode or eliminate
the right of
access
granted to unit owners.
MCCABE v. DAYTONA BEACH RIVERHOUSE, INC.,
Case
No. 01-2711, August 15, 2001
There is nothing in
section
718.111(12), Florida Statutes,
that prohibits a unit owner or his authorized representative
from making repeated requests for access to records. Although
section 718.111(12)(c), Florida Statutes,
does authorize the association to adopt
reasonable rules
regarding the frequency, time, location, notice, and manner of
record inspections and copying of official
records,
such restrictions cannot unreasonably deny
reasonable access
to
such
records.
Whether a particular rule is reasonable or unreasonable depends
on the facts and circumstances of each individual case. Rule
that stated “No
more than two (2) requests to inspect the records shall be
permitted from a single unit owner and/or his authorized
representative, or a single authorized representative
irrespective of the number of unit owners said individual
represents, within six (6) months period declared invalid.
WANDA DIPAOLA STEPHEN RINKO GENERAL
PARTNERSHIP, Petitioner, v. BEACH TERRACE ASSOCIATION, INC.,,
Respondent. Case No.
2007-02-2785,
February 2008.
Association's
rule limiting a unit owner to one records request per month is
unreasonable because it erodes Petitioner's right of access to
inspect the records. The arbitrator further concludes that Rule
IIIb., that limits the total amount of time a unit owner may
inspection records to eight (8) hours in a calendar month, is
also unreasonable.
KEITH L. NAPIWOCKI, Petitioner, v. ONE THOUSAND OAKS, INC.,
Respondent. Case No. 20-03-5230, September 28, 2020.
However, In Porta
Bella Yacht & Tennis Club Condominium Association, Inc. v.
Mechler, Arb. Case No. 98-3476, Final Order Dismissing Petition
(April 17, 1998), the arbitrator suggested that a reasonable
rule might restrict access to “3 or 4 times per month, for no
more than 4 hours per viewing, during enumerated times of the
day, at the offices of the manager, upon the owner giving 3
days' advance notice.”
I have
searched the arbitration database and could not find an example
where the arbitrator upheld a rule by the association as
reasonable. Therefore, if you want to make a rule limiting
access to records, I would follow the guidance as suggested in
Porta Bella. Restrict access to three or 4 times a month, for
no more than 4 hours per viewing, during certain times, at the
office of the manager, upon giving 3 days notice. I would also
mandate that the owner provide a means of contacting them to
schedule the appointment and/or to let them know that the
records are available, i.e. an e-mail address or telephone
number.
Bottom
line --- don’t go too far or you face an arbitration proceeding.
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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 Sachs, 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 11:00 a.m. 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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