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MichelleL4
(Florida)
Posts:38
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| 07/05/2011 3:20 PM |
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I requested by certified mail to view my association's documents and records. This is the state Statutes below:
(5) INSPECTION AND COPYING OF RECORDS.--The official records shall be maintained within the state and must be open to inspection and available for photocopying by members or their authorized agents at reasonable times and places within 10 business days after receipt of a written request for access. This subsection may be complied with by having a copy of the official records available for inspection or copying in the community. 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.
(a) The failure of an association to provide access to the records within 10 business days after receipt of a written request submitted by certified mail, return receipt requested, creates a rebuttable presumption that the association willfully failed to comply with this subsection.
(b) A member who is denied access to official records is entitled to the actual damages or minimum damages for the association's willful failure to comply with this subsection. The minimum damages are to be $50 per calendar day up to 10 days, the calculation to begin on the 11th business day after receipt of the written request.
(c) The association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but may not require a parcel owner to demonstrate any proper purpose for the inspection, state any reason for the inspection, or limit a parcel owner’s right to inspect records to less than one 8-hour business day per month. The association may impose fees to cover the costs of providing copies of the official records, including, without limitation, the costs of copying. The association may charge up to 50 cents per page for copies made on the association’s photocopier. 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. The association shall maintain an adequate number of copies of the recorded governing documents, to ensure their availability to members and prospective members.
I was told that I had to contact the association attorney & go through her for the request. I took photos of the documents and did not require any copies. I was then given a $250 invoice for "Administrator costs for preparation of records for inspection". My understanding of the Statute is that they may charge for copies but I did not request or require copies.
What do you think of this?
Thanks for your help!
Sincerely
Michelle
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TimB4
(Virginia)
Posts:3801
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| 07/05/2011 3:36 PM |
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| Emphasis added Posted By MichelleL4 on 07/05/2011 3:20 PM
(c) The association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but may not require a parcel owner to demonstrate any proper purpose for the inspection, state any reason for the inspection, or limit a parcel owner’s right to inspect records to less than one 8-hour business day per month. The association may impose fees to cover the costs of providing copies of the official records, including, without limitation, the costs of copying. The association may charge up to 50 cents per page for copies made on the association’s photocopier. 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. The association shall maintain an adequate number of copies of the recorded governing documents, to ensure their availability to members and prospective members.
Technically, the Registered Agent of the Association is the person that legal requests are to be sent to. Most Associations have their attorney as the registered agent. Based on the bill you received, it appears that the Board forwarded your request to the registered agent. The administrative fee, authorized per the emphasized section above, is likely the chargeable time for the law office to pull the records and make them available to you. The Board informed you to contact the attorney (I suspect the registered agent) to make arrangements to view the records.
Although I believe that a board should work with their members to provide documents (copies or via posting on the Associations website) what you are experiencing is one legal method of complying with the request.
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MichelleL4
(Florida)
Posts:38
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| 07/05/2011 4:59 PM |
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....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.
It would not be considered "reasonable" to charge someone $250 to view records.
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TimB4
(Virginia)
Posts:3801
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| 07/05/2011 5:31 PM |
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Michelle,
You are certainly entitled to that opinion. However, if you look at the issue from another point of view, a law firm who has someone locating a box of records, coordinating a room and possibly sitting with you while you go though it can not use that person to do research on another case or use the room for a different purpose.
If you consider the charge unreasonable you can certainly ask that it be reduced and/or petition a court of law to determine what a reasonable price would be.
In my Association we would have made arrangements to provide what the individual wanted probably without cost even though my State laws also allow to charge a "reasonable" fee. However, every Association operates differently.
Tim |
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MichelleL4
(Florida)
Posts:38
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| 07/05/2011 6:24 PM |
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Hi Tim,
I had just thought that this was not what the politicians had in mind when they wrote the Bill. It seemed like the fees would be for copying and the administrative costs for the time for the copying.
The management company pulled the records and the lawyer was just the go-between used in the hopes of charging me an unreasonable fee and discouraging me from requesting records again.
The real kicker is that I did not get all of the records I requested. I was told that receipts/invoices were "not approved", Design Review Board requests including plans & letters, approvals & denials were "confidential". Violations letters including courtesy letters were "confidential", complaints from homeowners were "confidential". The Board written policy is that owners must send written notification if they wish to videotape. When I asked to see those letters I was told, "do not need notification-just courtesy".
Thanks for your help.
Michelle |
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DonnaS
(Tennessee)
Posts:5671
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| 07/06/2011 5:39 AM |
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Michelle,
It would help all of us if we knew exactly what you were looking for and for what reason. From what you posted above, there is no continuity to the documents you requested unless you are trying to prove that there is a mishandling of the association. In your other post about posting a non tresspassing sign, you stated that "the Board hates me"
What kind of tresspassing is involved? Someone walking across your yard or are they having a party or hunting on your land? How big is your lot?
I am feeling that you are on a fishing excursion and I have to tell you, without proof of whatever you are going after, this could be costly to both you and the association. Remember, the Statutes allows for the association to collect attorney fees fro the losing party if this becomes litigation. I would say to you in all certanty, work this out with the Board because to drag it out over a long period will cause everyone to be on the losing side. |
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BruceF1
(Connecticut)
Posts:1510
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| 07/06/2011 7:42 AM |
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MichelleL,
Ah, lawyers!
One law firm i'm acquainted with charges for its time based on a rate of $500 per hour, and usually it's an hour minimum. Considering that, I would say that $250 for a law firm to prepare the records for inspection is probably not unreasonable. Had someone else been maintaining the records, such as a management company (which is where ours are kept), the cost may have been less. The invoice you received is for administrative costs, which is separate from the actual cost of providing copies. (Just like when you have an x-ray taken, you usually will receive one bill from the radiology lab for the actual taking of the x-ray, and another bill from the radiologist for interpreting the x-ray and writing the report.)
Unfortunately, lawyers aren't free. They will even charge for time spent on the telephone answering questions. Even a 5 or 10-minute call won't be free. The lawyer is going to charge somebody, either you, or the association. The association didn't make the request, you did. So, the lawyer is going to charge you.
When we were going through transistion and were discussing certain issues at board meetings, we sometimes asked if the property manager knew what the law was regarding this or that. The next day the property manager would call the association's lawyer and ask the question. When we realized the lawyer was billing us for all these phone calls, eating up our budget for legal expenses, we had to ask the property manager to not call the lawyer with a question unless the board specifically requested her to. |
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MichelleL4
(Florida)
Posts:38
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| 07/06/2011 9:31 AM |
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I am looking to see how the association money is being spent and if the documents are really being enforced and if selective enforcment is going on. I was President of the Board for over 5 years so I have experience on the other side of the fence and the new Board does not fulfill their fiduciary duties.
There is a very volatile mood in the neighborhood towards me because I expect to enforcment. The President's best friend's son has trespassed on my property and would not leave and was issued a warning by the Sheriff. I have also had people deliberately allowing their dogs to defecate on my lawn. I have a small 50 X 120 lot.
Thankfully Florida Statutes do state that the association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but may not require a parcel owner to demonstrate any proper purpose for the inspection, state any reason for the inspection, or limit a parcel owner’s right to inspect records to less than one 8-hour business day per month.
As a past Board member, you question where all the money is going when nothing is being enforced.
I have tried to work with the Board but they do not want me to have access to the records. As I stated in a previous post, I did not get all of the records I requested. I was told that receipts/invoices were "not approved", Design Review Board requests including plans & letters, approvals & denials were "confidential". Violations letters including courtesy letters were "confidential", complaints from homeowners were "confidential". The Board written policy is that owners must send written notification if they wish to videotape. When I asked to see those letters I was told, "do not need notification-just courtesy".
As a former Board member and someone who was worked in the community asoociation management, I know that this is a violation and their actions show they willing failed to comply with the Statutes.
I called the Department of Business and Professional Regulation to check on my complaint regarding the documents I was denied and requesting $500 in damages for failure to provide them within 10 business days. I also filed a complaint against the lawyer for the improper and unreasonable invoice. Wish me luck!
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MichelleL4
(Florida)
Posts:38
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| 07/06/2011 9:35 AM |
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I spoke with the Department of Business and Professional Regulation today and she felt they violated the Statute. She felt the $250 was innapropriate and unreasonable. The management company DOES maintain the records but the Board wanted to punish me for my records request and to make it difficult by making me go through the lawyer and by making sure I was charged an excessive amount to discourage me from making other record requests.
I have just reached out to the Florida legislature to let them know how this Statute is being interpreted. Needless to say, this is not what they intended to have happen. I can't wait to hear back from them further on the matter! |
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BruceF1
(Connecticut)
Posts:1510
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| 07/06/2011 9:53 AM |
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Posted By MichelleL4 on 07/05/2011 3:20 PM
(c) The association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected....
Donna is far better at interpreting Florida HOA law than I am, since she lived there before moving to Tennessee, but my take on the part I put in bold from the law you quoted (above) is that the association may withhold certain documents from inspection, provided that they can show it is reasonable to do so. Records involving complaints and disciplinary actions concerning other homeowners might be considered private and not viewable by other homeowners. An example similar to this are the performance records of certain government employees. They are generally exempt from FOIA requests. |
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DonnaS
(Tennessee)
Posts:5671
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| 07/06/2011 10:13 AM |
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Thanks Bruce.
EVERYONE!!! PLEASE INTERPRET THIS!!!
Fl Statute 720:303 5 (c)
"c) The association may adopt reasonable written rules governing the frequency, time, location, notice, "RECORDS TO BE INSPECTED, and manner of inspections, but may not require a parcel owner to demonstrate any proper purpose for the inspection,
Does this not say that the HOA MAY restrict any of the records if they so desire?
This is the list of records that are NOT available to members for inspection. Many people who feel that they are privy to any documents that they want are just plain wrong. I feel strongly that all financial records SHOULD be open to inspection because that is my money and your money which we should be able to monitor. Who is in trouble with the HOA is not anyone's business until it becomes public record.
"1. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege, including, but not limited to, any record prepared by an association attorney or prepared at the attorney’s express direction which reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the association and which was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings or which was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings until the conclusion of the litigation or administrative proceedings.
2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel.
3. Personnel records of the association’s employees, including, but not limited to, disciplinary, payroll, health, and insurance records.
4. Medical records of parcel owners or community residents.
5. Social security numbers, driver’s license numbers, credit card numbers, electronic mailing addresses, telephone numbers, emergency contact information, any addresses for a parcel owner other than as provided for association notice requirements, and other personal identifying information of any person, excluding the person’s name, parcel designation, mailing address, and property address.
6. Any electronic security measure that is used by the association to safeguard data, including passwords.
7. The software and operating system used by the association which allows the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.
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MichelleL4
(Florida)
Posts:38
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| 07/06/2011 11:30 AM |
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It all comes down to what is deemed "reasonable". It is reasonable for an owner to inspect association receipts, to inspect what violation letters have been sent to see if the Board is fulfilling their fiduciary duty and to inpsect complaints that have been made against their property. It has been my experience in searching local case laws that the associations do not prevail when they withhold documents other than those specifically deemed not accessible. When it comes down to it, the judges and state consider "official records" to be open to homeowners. It's a shame that so many Boards have so much to hide and want to cost the association thousands of dollars to keep things hidden.
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DonnaS
(Tennessee)
Posts:5671
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| 07/06/2011 11:35 AM |
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Michelle,
And that is why the word "Reasonable" should never, ever be used to set limitations. Case and point?? State of Florida vs Casey Anthony, "REASONABLE DOUBT" What the he!! does that mean. |
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MichelleL4
(Florida)
Posts:38
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| 07/06/2011 11:35 AM |
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The Statute does not state that the HOA may restrict any of the records just that it may adopt reasonable rules governing the records to be inspected. Again, it's what will be deemed reasonable.
I only feel privied to the documents that the State allows. I also feel privied to inspect all financial records and receipts. It is of the utmost importance that a homeowner can verify that the Board is fulfilling their fiduciary duty by inspecting violation letters that are sent out. It is also the right of a homeowner to view any complaints that have come in against them. Who is in trouble with the HOA is EACH MEMBER'S business. Most violations are public record because they are easily and readily seen by the public through the street view.
The right to privacy is trumped by the right to know as I have been discovering in local case law. |
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TimB4
(Virginia)
Posts:3801
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| 07/06/2011 3:14 PM |
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Posted By BruceF1 on 07/06/2011 7:42 AM
Unfortunately, lawyers aren't free. They will even charge for time spent on the telephone answering questions. Even a 5 or 10-minute call won't be free. The lawyer is going to charge somebody, either you, or the association. The association didn't make the request, you did. So, the lawyer is going to charge you.
Boy that is a true statement. Our Association actually received a bill because the attorney spent 15 min. talking on the phone to a potential buyer about the Association (I think the cost was $60). The buyer contacted them because they were the registered agent.
The good thing that came out of this was a complete revamp of our disclosure package, which now includes a cover page saying to contact a board member for questions relating to documents within the package. We also encourage sellers to list our Associations website as part of the property listing.
Tim
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ST2
(Florida)
Posts:21
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| 11/25/2011 4:02 AM |
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| Is there an update on this? Our Association has a very similar situation and I would like to know the outcome of the arbitration. |
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