ACCESS TO RECORDS – SO IS THERE A COST OR NOT?

Despite the fact that legislative progress has been made in getting owners access to association records, there is still confusion as to whether or not associations and/or management companies can charge an owner for such access and for photocopies of the records. Let’s address the law for both condominiums and HOAs.

For condominiums: One way of potentially making it easier on the association and the owners to provide and obtain access to records is to post them on a secure website that only owners have access to. In fact, Florida Statute 718.111(12) states that 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. Please note however that the unit owner has the option to receive the records in this fashion, if the association offers it. If the unit owner wants to inspect the physical records, they can still do so and reject the association’s offer to provide the records electronically.

The right to inspect the records includes the right to make or obtain copies, at the reasonable expense, if any, of the member. In other words, the unit owner has to pay for the copies if they ask the association to actually make copies.

However, who needs the association to make copies? The law provides that an association shall allow a member or his or her authorized representative to use a portable device, including a smartphone, tablet, portable scanner, or any other technology capable of scanning or taking photographs, to make an electronic copy of the official records in lieu of the association’s providing the member or his or her authorized representative with a copy of such records. The association may not charge a member or his or her authorized representative for the use of a portable device.

So, the condo statute is clear. The association can’t charge anything for access to records if the owner will be making their own copies. It’s cut and dry.

 

For HOAs: Go figure…..the law doesn’t protect owners in a homeowner association as much as it does unit owners in a condominium. I would say that’s a familiar theme by now. Believe it or not though, things are better now than they were. Up until a few years ago, there was basically no limit on what an HOA can charge for access to association records. Homeowners were getting charged hundreds of dollars for just a few photocopies. Jan and I helped change that by lobbying for some reasonableness.

Unlike in a condominium, the association has the option of making the records available to a parcel owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request. In a condominium, it’s the owner who has the option of viewing the records electronically instead of physically.

In an HOA, 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. Just like in a condominium association, the homeowner’s association must allow a member or his or her authorized representative to use a portable device, including a smartphone, tablet, portable scanner, or any other technology capable of scanning or taking photographs, to make an electronic copy of the official records in lieu of the association’s providing the member or his or her authorized representative with a copy of such records. The association may not charge a fee to a member or his or her authorized representative for the use of a portable device.

The next part is where the condo and HOA statute really differ. The homeowner’s association may impose fees to cover the costs of providing copies of the official records, including the costs of copying and the costs required for personnel to retrieve and copy the records if the time spent retrieving and copying the records exceeds one-half hour and if the personnel costs do not exceed $20 per hour. Personnel costs may not be charged for records requests that result in the copying of 25 or fewer pages.

So, by way of example, let’s say that a unit owner wants copies of the association’s bank statements from 2013. The management company tells you that the records are stored in a warehouse and they need to send personnel to the warehouse to find them and retrieve them and that it will take four hours to do all this. If all of the banking records exceed 25 pages, the first half hour of the manager’s time is on the house. However, the other three and a half hours can be charged at $20.00 per hour. Someone explain to me why the law should allow condo owners to get this for free, but require an owner in an HOA to spend $70.00.

In any event, these are the rules and most importantly, failure to provide timely access within ten days subjects the association to a penalty not to exceed $500.00 and payment of the owner’s attorney’s fees and costs. A condo owner denied access to the official records has the right to immediately file for arbitration but an HOA owner has to go to pre-suit mediation first and if mediation fails, must go through the expense of filing a lawsuit against the association.

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