Protected Personal Information

I have enclosed the Washington Revised Codes regarding access to financial and other records. The financial record access is clear. What is not clear is what other records to which it is allowing access. Specifically, can one homeowner request to see another homeowner's Covenant Violation Notices or Fines, and any or all of correspondence between that homeowner and the Board? I understand that any monetary transactions, be it fines, fees, levy's attorney etc., must be disclosed, but, do the names have to be disclosed? For example, if we spent $62 to file a Claim of Lien, would we need to put the homeowner's name in the budget or just the cost? How protected are the individual homeowners from any potential mischief on the part of another? Thank you.

Dorothy

RCW 64.38.045
Financial and other records — Property of association — Copies — Examination — Annual financial statement — Accounts.

(1) The association or its managing agent shall keep financial and other records sufficiently detailed to enable the association to fully declare to each owner the true statement of its financial status. All financial and other records of the association, including but not limited to checks, bank records, and invoices, in whatever form they are kept, are the property of the association. Each association managing agent shall turn over all original books and records to the association immediately upon termination of the management relationship with the association, or upon such other demand as is made by the board of directors. An association managing agent is entitled to keep copies of association records. All records which the managing agent has turned over to the association shall be made reasonably available for the examination and copying by the managing agent.

(2) All records of the association, including the names and addresses of owners and other occupants of the lots, shall be available for examination by all owners, holders of mortgages on the lots, and their respective authorized agents on reasonable advance notice during normal working hours at the offices of the association or its managing agent. The association shall not release the unlisted telephone number of any owner. The association may impose and collect a reasonable charge for copies and any reasonable costs incurred by the association in providing access to records.

(3) At least annually, the association shall prepare, or cause to be prepared, a financial statement of the association. The financial statements of associations with annual assessments of fifty thousand dollars or more shall be audited at least annually by an independent certified public accountant, but the audit may be waived if sixty-seven percent of the votes cast by owners, in person or by proxy, at a meeting of the association at which a quorum is present, vote each year to waive the audit.

(4) The funds of the association shall be kept in accounts in the name of the association and shall not be commingled with the funds of any other association, nor with the funds of any manager of the association or any other person responsible for the custody of such funds.

Tim,
Thank you, as always Tim. Well, it does and it doesn't. It does in that it certainly expands on the term "records." But it doesn't really answer to my specific situation, which is: we have issued a covenant violation fine of $25 to a homeowner, a first time fine for him, and a first time fine ever for the association since we instituted a fining system two years ago. One of the things he is requesting is to see any and all covenant violation communications we have had with any homeowner, such as e-mail reminders, formal warnings, and formal covenant violation fines. He is claiming we are "targeting" him and only him, singling him out for harassment, playing favorites, etc. The Board responded to his one and only communication with us in the past four years, which was two pages of twenty questions, with our own paper trail of every e-mail, every piece of correspondence, every phone call and every conversation we have ever had with him. It came to 18 documents we copied and sent to him. We also told him that just as his situation is no one else's business unless they are one of the neighbors submitting the complaint, neither is anyone else's business his. So, no, we were not going to provide him with information on anyone else.

I can well imagine if he takes us to court, over this $25, that kind of information could no doubt be part of any discovery. But I'm not convinced that is the type of "records" any homeowner is entitled to. So, I don't know if your information can help me here or not. What do you think?

Dorothy

I would do one of the following:

1) Send a reply to the request:

The Board considers that releasing any information about alleged or actual violations of other members would be a violation of privacy. As you are aware, the Board is obligated to protect privacy information. Just as the Association would not reveal your records to other members, we may not reveal the records of other members to you.

Then if it goes to court or you receive a letter from an attorney - seek advice from your attorney. If a court orders the information released in discovery, fine - you need to comply with a court order. You don't have to volunteer the info.

2) Reply:

The Board, is not sure which association records may or may not be released and be in compliance with State and Federal privacy laws. Therefore, the Board would need to forward your request to our attorney. Per RCW 64.38.045, The association may impose and collect a reasonable charge for copies and any reasonable costs incurred by the association in providing access to records. The board is unsure of the costs involved but may be their normal fee for legal services to identify the records which comply with your request and not violate privacy laws. The Board estimates this time to be at least one hour. There would be additional costs involved in making copies of any papers to satisfy your request. Until the attorney goes through the documentation, there is no way to predict the actual cost you will be required to pay. Since any costs would be paid by you, even if the attorney determines that there are no records of the type you request or that privacy laws prevent release of the information, the Board wanted to verify that you agree to pay these costs prior to initiating action to fulfill your request. Please let us know at your earliest convenience.

Either option covers the board. Either option will most likely tick the member off. Therefore, I would recommend going with option 2, as it shows that the Board is trying to satisfy the request. It would also be good if you can get an hourly rate that the attorney would charge for such service so it can be included in the letter.

Hope this helps.

Tim

Be aware of something. Most states do NOT allow for fines to be the basis of a lien or foreclosure. Which means your filing of the lien against this owner may not be valid. You can lien if they are behind in dues or the cost of removal of a violation the HOA performed. Meaning if they put an outhouse in their yard, the HOA can pay someone to remove it. That removal costs can be the basis of a lien. (Of course their is more steps than that involved but it's the short version).

It's a common mistake that HOA's think they have the power of fining members and enforcement of it. It is possible for a HOA to fine under certain conditions and laws. Having an agreed upon fine schedule established is one of those ways. However, most HOA's don't have an established fining system and thus don't have as much power to enforce some fines. I would check with a lawyer about your HOA's fine setup to double check it's ability to issue fines.

The member does have a right to review all the records of the HOA. However, those involving collections other than their own isn't one of them. That doesn't mean they can't know that information. It just needs to be generic like the number of total units paid versus those unpaid. If you have 100 units and 90 pay on time, 5 are late, and 5 are in rears. That type of information may be available. If the person wants to review their own account, that is okay. Viewing others isn't unless you put it as "Lot numbers" and strip any kind of personal contact information. We referred people by their lot numbers in our meetings.

The meeting notes should have all the information this member would want in regards to any decisions made. A copy of meeting notes and expense reports would be the information I would provide the member if they asked to review any HOA documents. Plus it wouldn't hurt to make sure there is a copy of the HOA CC&R's nearby. They wouldn't be able to take any of it home with them or make copies for free. It would be reviewed at an arranged time and place.

Remember suing your HOA is suing yourself and your neighbors. A concept you may want to mention when this person starts screaming lawsuit out their witch hunt. It usually knocks the wind out of their sails if your not threatened by them. Plus it's cheaper for the HOA to countersue than to bring a suit against any member. So if anyone threatens to sue, tell them okay see ya in court. 95% of the time they aren't going to do it.

Brad,

Melissa is right. I do recall a discussion about this in the past and that links were provided.

Although I don't have the time to find the specific statutes, I did locate an article that indicated AZ had such a statute (scroll down to Are There any Defenses to an Assessment Lien?).

As we know, each State has different laws and that is all Melissa was pointing out.

Melissa et al.,

Thank you for all your knowledgeable replies.

Please see the following:

According to the Washington State Chapter of Community Associations Institute:

Rules and Rule Enforcement:

Q: Can we impose fines for violation of association rules?

A: Both the Washington Condominium Act (See RCW 64.34.304 (k)), and the Homeowners Association Statute (See RCW 64.38.020 (11)) gives associations the power to levy “reasonable” fines for the violations of association rules, bylaws or covenants. Rules and fines must be voted upon by the Board or owners and a written schedule of fines distributed to the members of the association. In the event of a violation, the Board must be careful to give violators adequate notice and an opportunity to be heard before the fine is imposed, any fines that are not paid may be treated as any other unpaid assessment. The Horizontal Property Regimes Act (condominiums) says only that failure to comply strictly with the covenants, bylaws, or rules of an association shall be “ground for an action to recover sums due” (See RCW 64.32.060).

This statute does not seem to discriminate between "damages," being made "whole," "loss of income," etc. It says that for any violation of a covenant, a bylaw, or rules of the association a fine can be assessed and pursued legally for collection. By the way, in searching for an HOA-savvy attorney in Washington, I hooked up with one, and e-mailed him this as part of our initial consultation, (since as this forum has noted, it is a crucial understanding any HOA must have), and he confirmed my interpretation of it.

So, we do have an approved fee structure for covenant violation, adopted two years ago, in addition to the standard delinquent annual assessments policy (late charges, etc).

But, still, we will contact our lawyer, after all attempts at resolution between us and the homeowner have been exhausted, before we set in motion any legal action in the process of collecting the assessment for his covenant violation. He received our final attempt yesterday, via Certified Delivery, and has till December 19th to respond one way or another.

The fun never ends!

Dorothy

Brad,
Well, that would be a project wouldn't it? Believe me, it's not easy navigating state laws! You might want to try your state's CAI chapter, asking that same question I did. You might have to be a member though, which is why I think the $114/year membership fee is worth it. It can be an additional resource pertinent to your state, which can help relieve the frustration of the words "many," and "most."

Dorothy

Brad,
And that's a good thing! Me either. . . This dang association already takes up too much of my time. If I was a better person I'd quit tomorrow. . .

Dorothy

Plus, if I quit, I'd miss all the the HOA Talk!!! Just got the HOA blues today. I'm gonna shut 'er down and take these "dreams" to bed. Thanks Tim.