LIMITING ACCESS TO RECORDS – IT AIN'T EASY

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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