THE MOTHER  OF ALL BATTLES - GETTING ACCESS TO RECORDS

By Eric Glazer, Esq.

Published July 16, 2012

To simplify, I like to say that any document that could be, might be or appears to be an official record of the association probably is.  To further simplify, every unit owner in both a condo and an HOA can see all the official records with very few exceptions.  (Even the accounting ledger for your unit)  Those exceptions basically are:

1.          Any record protected by the lawyer-client privilege;

2.         Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit;

3.         Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records;

4.          Medical records of unit owners;

5.         Social security numbers, driver’s license numbers, credit card numbers, e-mail addresses, telephone numbers, facsimile numbers, emergency contact information, addresses of a unit owner other than as provided to fulfill the association’s notice requirements, and other personal identifying information of any person, excluding the person’s name, unit designation, mailing address, property address, and any address, e-mail address, or facsimile number provided to the association to fulfill the association’s notice requirements.

           In a condo, the records must be made available to a unit owner within 5 working days after receipt of a written request by the board or its designee.  HOA owners have to wait longer, 10 days.  HOA owners are forced to pay more for access to and copies of records than owners in a condominium.  In an HOA, the association may charge up to 50 cents per page for copies made on the association’s photocopier, whereas a condominium can only charge a reasonable expense. 

The bigger problem is that in an HOA, if the association does not have a photocopy machine available where the records are kept, or if the records requested to be copied exceed 25 pages in length, the association may have copies made by an outside vendor or association management company personnel and may charge the actual cost of copying, including any reasonable costs involving personnel fees and charges at an hourly rate for vendor or employee time to cover administrative costs to the vendor or association.   

Last week, I was somewhat surprised by some of the comments from our readers of the blog.  Not everyone was sympathetic to the plight of licensed Florida CAMs.  If there is one statute to blame for why some people feel this way, the access to record statute may be the one.  Despite the fact that the statute was clearly designed to allow the association to pass on the actual costs of what the management company charges to respond to records requests from owners, many CAMS and/or management companies have interpreted this statute to mean that they are now at liberty to charge exorbitant fees to HOA owners who want access to records and who must pay these fees up front.  That is not the statute's intent and ultimately rest assured that a court will make an example of a management company who goes too far.

In a condo, the failure of an association to provide access to the records within 10 working days after receipt of a written request allows the owner to file an arbitration action against the association for at least $50 per calendar day for up to 10 days, beginning on the 11th working day after receipt of the written request and for reimbursement of reasonable attorney’s fees.  So, be aware that arbitrators routinely award an owner $500.00 in damages, thousands in attorney's fees and costs and enter an order requiring the association to permit access to the records.

In an HOA, an owner deprived of access to records must first go to mediation.  If that fails, it's off to court to seek the same remedies that condo owners get in arbitration. 

            Keep in mind that both the condo and HOA statute only requires that the association provide "access" to the records.  It does not require the association to mail copies of records to owners who demand that the association send them documents in the mail.  The association is not under any obligation whatsoever to respond to records requests by mail.

In both a condo and an HOA, the association may adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying.  These rules however must be reasonable and cannot serve to act as a deterrent to a unit owner who demands access.  Decisions by the arbitrators who have ruled on these issues generally state that associations who are larger and have full-time staff will not be able to create rules that dramatically restrict the days and hours that unit owners are allowed to inspect records whereas associations that are small, self managed and have few resources may be more restrictive.  Before passing a rule, associations are wise to ask their counsel first if their proposed rule would pass scrutiny.

Finally, 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.  THIS IS A GREAT IDEA!  Many associations have embraced technology and have created a website for their association, posting all of the association's official records, while restricting access solely to unit owners.  These associations will generally tell you that as a result of posting the official records on the website, records requests are dramatically down, the association's office is not bogged down responding to requests, and the community association manager is happier spending his or her time on other pressing issues.

If anyone can think of a good reason why it should be more difficult and expensive for HOA owners to get access to records than condo owners, please let me know.  I'm certainly stumped for an answer.  I'm afraid to ask……but how about telling us some record request horror stories of your own?