Condo Law – Document Inspections and Restrictions
Mr. Andrew Cuevas, Esq., is the President of Cuevas, Garcia & Torres, P.A., and Vantage Property Title Company, and oversees the Community Association Law Division of the law firm as well as the Real Estate Transactions practice (including title insurance services) of the law firm and Vantage Property Title Company. If you have any questions regarding this article or any other questions, you can contact Mr. Cuevas at (305) 461-9500 or at [email protected]. If you are interested in reading previous newsletters, please visit www.cuevaslaw.com, select the icon for Newsletters, and then choose the area of law you are interested in.
Article – Document Inspections and Restrictions
The document inspection is a well known right of the owner, as well as the well-known nightmare for the property manager. The unit owner’s right to know what is going on in its community is almost unlimited, but there are times when the efforts to know what is going on is an exercise of harassment and time control of the management of the Association. The never ending balancing act that associations must do is to determine how to balance a unit owner’s right to receive documents while ensuring that management’s limited time is not controlled by the unit owner resulting in damage to the rest of the community because of lack of time to provide other paid-for management services. Associations have the obligation to make available association records but Boards of Directors can take steps through its rule making power to ensure that the Association management is not merely making photocopies of documents as opposed to actually managing the property.
Association official records must be maintained for at least 7 years within the State of Florida and must either be made available to a unit owner within 45 miles of the condominium property or within the county in which the condominium property is located five working days after receipt of a written request by the board, or copies of the record can be made available for inspection or copying on the condominium or association property. Most (but not all) documents become “official records” as soon as they are received by the association, such as candidate information sheets. However, contents of sealed voting proxy envelopes received by the association which has not yet been opened, verified as legitimate, and submitted for counting are not subject to inspection and copying. The unopened envelope is arguably an official record.
The official records of the association are open to inspection by any association member or the authorized representative, and are subject to reasonable rules of the association. [F.S. §718.111(12)(c)]. A unit owner’s agent or attorney has the same inspection and copying rights as the owner represented. F.S.§§ 718.111(12)(c), 607.1603, 617.1603(1). The failure to permit inspection of the association records within ten working days after receipt of a written request may entitle any person prevailing in an enforcement action to recover actual or minimum damages (minimum damages being $50 per calendar day, starting on the eleventh day after receipt of the request, and up to 10 days) from the association, and reasonable attorney’s fees from the person in control of the records who, directly or indirectly, willfully or knowingly denied access to the records. Even if it is the community association manager who receives the request for inspection and then fails to comply, the association is still liable. ( In re: Werdene v. Joe Ron North Condominium Ass’n, Inc. , Case No. 2009-03-3314, DBPR, Division of Florida Land Sales, Condominiums, and Mobile Homes, August 14, 2009). The access to records cannot be denied for the failure to pay assessments or fees due to the association. ( Berg v. Lincolnwood Towers Condominium, Inc. , DBPR Arb. Case No. 98-5029, Summary Final Order (1999)).
A right to inspect the records includes the right to make or obtain copies, at the reasonable expense if any, of the association member. The association may impose a reasonable charge, covering the costs of labor and material, for copies of any documents provided to the member. The charge may not exceed the estimated cost of production or reproduction of the records. Some statutory, rule, or case law exemptions are provided, which state that the following records are not accessible to unit owners :
- The original recorded declaration of condominium(s) and amendments, the original recorded bylaws and amendments, and the original filed articles of incorporation and amendments;
- Any record protected by the lawyer-client privilege as described in F.S.§90.502, and any record protected by the work-product privilege including any record prepared by an association attorney or at his or her 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 such litigation or proceedings until the conclusion of the litigation or proceedings;
- Materials in possession of the association relating to concluded litigation which are still protected by the attorney-client privilege;
- Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit;
- Personnel records of association employees, including, but not limited to, disciplinary, payroll, health, and insurance records.
- Medical records of unit owners;
- 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 meet the association’s notice requirements, and other personal identifying information of any person except for the person’s name, unit designation, mailing address, and property address and any address, e-mail address, or facsimile number provided to the association to fulfill its notice requirements.
- Any electronic security measure used by the association to safeguard data, including passwords.
- The software and operating system used by the association that allows manipulation of data, even if the owner owns a copy of the same software used by the association. The data, however, is part of the official records of the association.
- The contents of sealed ballot envelopes received by the association which have not yet been subject to the verification, opening, and tallying process which occurs at a meeting at which directors will be elected;
- The contents of sealed voting proxy envelopes received by the association which have not yet been opened, verified as legitimate, and submitted for counting;
- Information relating to the medical condition or status of any person covered by an employer provided health or life insurance benefit program;
- Confidential communications with a certified public accountant arising from an accountant-client relationship;
- Documents which are protected by the attorney-client privilege, such as correspondence to the association from its attorney offering legal advice on a specific question;
- Nature of informal endeavors with the Florida Commission on Human Relations to resolve an alleged discriminatory housing practice;
- Certain information relating to a job applicant or employee who is covered by the Americans with Disabilities Act of 1990 may be exempt. Check with counsel;
- Certain documentation involved in the investigation of, or dealing with, a discrimination or sexual harassment complaint may also be exempt.
Though some unit owners do not understand this, or wish to not accept this, unit owners do not have a right to demand, either orally or in writing, that record copies be mailed to them either on one occasion or periodically. In the matter of Kavalec v. Continental Inn Condo. of Key Colony Beach, Inc. , DBPR Arb. Case No. 98-5271, Summary Final Order (1998), the arbitration decision stated in part as follows:
- An association did not violate the official records statute when the president refused to mail copies of requested records to a unit owner. The statute provides that the association’s records shall be maintained within the state and shall be “made available” to a unit owner within five working days after receipt of a written request by the board or its designee. This requirement may be complied with by having a copy of the records available for inspection or copying on the condominium property. The statute does not require the association to mail copies of records requested by a unit owner or to arrange for their delivery by other means. The rule pertaining to copying and delivery of copies does not require the association to mail copies of records. The rule merely provides that the association may, if requested by the unit owner or his representative, mail the copies and may charge the unit owner the actual cost of mailing or other delivery.
In an effort to balance the interests of the unit owner to have access to Association records with the interests of having the property manager actually perform management services for the community, Boards of Directors may impose Rules and Restrictions as to the timing, frequency, and volume of document requests on all unit owners. These rules imposed by the Board must be reasonable and have been upheld by various arbitration decisions.
Also, the association does not have any obligation to:
- To actively search through its records to find specific documents requested. The proper procedure is for the owner to request access to the records and to find the sought records himself/herself;
- Create or generate a document or a report for a unit owner that it does not maintain in the form requested by an owner, or that is not required by the statute or the documents to maintain;
- To obtain documents from outside sources for a unit owner that it would otherwise not obtain for its own purposes; or
- To answer a list of questions or interrogatories submitted to it by a unit owner, although this may now be tempered a bit by more recent legislation permitting the unit owner to make “inquiries” to the association.
This article is solely a partial explanation of all the issues related to document inspection rights of unit owners and the Board’s ability to limit such rights. The association should consult with its legal counsel to obtain explanations of all issues related to document inspection.