Freedom of Information Act

Started by JodyW1 • 27 replies • 12447 views

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JodyW1 (Georgia)
Posts: 7

Posted:

We recently notified a resident that he was in violation of a the covenants. He got ticked off and demands to be sent copies of all letters to sent other violators to ensure he is not being targeted. I do not think we are required to share that information. I believe that the matters should be private and not public for fear of violating privacy rights. He bases his request on the Freedom of Information Act. I do not think thata applies here.

Anyone ever have to deal with this kid of request? What is your opinion about sharing the letters that were sent to other violators?

Thanks

Jody

MikeS1
Posts: 521

Posted:

Yes, and our attorney advised us that he can ask for some limited documentation (He would have to pay for the copying cost and the labor or producing the documents), but he's not privy to proceedings that are held in executive session that involve hearings for violations etc. Several homeowners have requested this and it's certainly not subject to the freedom of information act.

MikeS1
Posts: 521

Posted:

I don't believe that you should disclose any violation letters to this homeowner.

DavidW5 (North Carolina)
Posts: 565

Posted:

The FOIA applies only to documents held by government entities. An HOA is not a government entity so you are not obliged to provide documents under its provisions.

PeterD3 (Florida)
Posts: 708

Posted:

It depends on HOA docs. and Ga. law.

In Florida VERY few items are excluded from member review and or copying. Violation letters and other similar records, not involved in ACTIVE litigation, are not one of them.

In fact the HOA has limited time to provide access or face $50/day fine.

FOIA, "Sunshine" laws, and similar public information regulatuions have no bearing on private corporate documents.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Jody,

If you are incorporated as a non-profit corporation the following would apply:

TITLE 14. CORPORATIONS, PARTNERSHIPS, AND ASSOCIATIONS
CHAPTER 3. NONPROFIT CORPORATIONS
ARTICLE 16. RECORDS AND REPORTS
PART 1. RECORDS

14-3-1602. Members' right to copy and inspect records

(a) A corporation shall keep a copy of the following records:

(1) Its articles or restated articles of incorporation and all amendments to them currently in effect;

(2) Its bylaws or restated bylaws and all amendments to them currently in effect;

(3) Resolutions adopted by either its members or board of directors increasing or decreasing the number of directors or the classification of directors, or relating to the characteristics, qualifications, rights, limitations, and obligations of members or any class or category of members;

(4) Resolutions adopted by either its members or board of directors relating to the characteristics, qualifications, rights, limitations, and obligations of members or any class or category of members;

(5) The minutes of all meetings of members, executed waivers of notice of meetings, and executed consents, delivered in writing or by electronic transmission, evidencing all actions taken or approved by the members without a meeting, for the past three years;

(6) All communications in writing or by electronic transmission to members generally within the past three years, including the financial statements furnished for the past three years under Code Section 14-3-1620;

(7) A list of the names and business or home addresses of its current directors and officers; and

(8) Its most recent annual registration delivered to the Secretary of State under Code Section 14-3-1622.

(b) A member is entitled to inspect and copy, at a reasonable time and location specified by the corporation, any of the records of the corporation described in subsection (a) of this Code section if the member gives the corporation written notice or a written demand at least five business days before the date on which the member wishes to inspect and copy.

(c) A member is entitled to inspect and copy, at a reasonable time and reasonable location specified by the corporation, any of the following records of the corporation if the member meets the requirements of subsection (d) of this Code section and gives the corporation written notice at least five business days before the date on which the member wishes to inspect and copy:

(1) Excerpts from minutes of any meeting of the board of directors, records of any action of a committee of the board of directors while acting in place of the board of directors on behalf of the corporation, minutes of any meeting of the members, and records of action taken by the members or the board of directors without a meeting, to the extent not subject to inspection under subsection (a) of this Code section;

(2) Accounting records of the corporation; and

(3) Subject to Code Section 14-3-1605, the membership list.

(d) A member may inspect and copy the records identified in subsection (c) of this Code section only if:

(1) The member's demand is made in good faith and for a proper purpose that is reasonably relevant to the member's legitimate interest as a member;

(2) The member describes with reasonable particularity the purpose and the records the member desires to inspect;

(3) The records are directly connected with this purpose; and

(4) The records are to be used only for the stated purpose.

(e) This Code section does not affect:

(1) The right of a member to inspect records under Code Section 14-3-720 or, if the member is in litigation with the corporation, to the same extent as any other litigant; or

(2) The power of a court, independently of this chapter, to compel the production of corporate records for examination.

JodyW1 (Georgia)
Posts: 7

Posted:

Thnaks for all the good input thus far. Seems that there is not cut and dried answer though.

I should also offer some clarification of this situation as it most likely will affect the answer. Here are some addtitional facts:

1. The member who requested the copies of the letters has not been a paid member of the HOA in 2010 or 2011. Due to the failure of the developer including mandatory membership as part of the covenants, we are currently a volunter association.

2. The developer has passed enforcement of the protective covenants to the HOA.

3. We have included enforcement clauses in our by-laws and informed all residents, whether members or not that the HOA would be responsible for covenant enforcement.

I am not sure if the above statements would influence the answers, but I am betting that the fact that this resident has not paid dues in last 2 years that he has no rigth to request anything from us.

LawrenceC1 (Georgia)
Posts: 480

Posted:

Jody,

How can a voluntary organization enforce covenant standards? Especially against someone who hasn't joined voluntarily? Only if an obligation to honor the covenants conveys with ownership of the property does the HOA have legal standing to make rules.

You are likely correct that the homeowner has no right to view Association documents, but it is also true that your HOA has no right to require the homeowner to abide by the covenants.

JodyW1 (Georgia)
Posts: 7

Posted:

I think by now it is obvious how screwed up this HOA is. I inherited these problems but at the then of the year I assure you they will not be mine any longer. How I ever let them talk me into even being on the board, much less accept the position of President I will never know. I don't drink so I cannot blame it on that.

We are basing our authority to enforce the covenants on the fact that the LLC (developer) gave us written authorizaton to enforce the covenants. we have viewed it as very similar to a business hiting our collections for past due debts. Even though we are not paid to enforce the covenants, we look at it like we were hired as an agent of the LLC. I could be wrong and we do not have any right to enforce. I would rather that be the case so I can wipe my hands of the negative part of being President.

All of this would have been so simple if the LLC had included a clause in the Covenants requiring membership in the HOA. We are hoping to get covenants changed to reflect that this year but I do not have very high hopes of that. Most people agree that it takes 100% to change the covenants and we will NEVER get that.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Jody,

You may want to take the question of enforcement and is the Association voluntary/mandatory and what it takes to amend the governing documents to your Association attorney for a legal opinion.

Getting this opinion prior to the end of your term will clear the air completly for not only your Board but the members and future boards.

Tim

DagmarB (Georgia)
Posts: 21

Posted:

Jody, I am in Georgia we ammended our Declaration last year, it takes 80% of homeowners, an attorney and a filing fee, it has to be recorded in your county.
We actually forced the developer to designate a Board , he is now bankrupt, how long was the developer in charge of your property and Assoc? Has your Assoc. been registered with the Secretary of State?

JodyW1 (Georgia)
Posts: 7

Posted:

In this case the developer is still very active and owns alomost 50% of the remaining lots. This is a golf dcourse community and the developer owns the golf course also.

We are registered sith th SEct of State in GA and have recorded our by-laws with the county court house. If we only need 80% then we might have a chance.

DagmarB (Georgia)
Posts: 21

Posted:

Jody, is the developer the President, he still has the majority of votes, get gim in your corner, he has by Ga. law 50 votes plus one. If he is in agreement it should be easy for him in, light of your experience to ammend your covenants with the help of homeowners. Make sure they are recorded in your county and forward a copy to all homeowners. Than ask him to appoint a Board of Directors.

AlanP1 (Louisiana)
Posts: 6

Posted:

timb4

is this for the state you live in or is this federal law???

JohnO6 (Georgia)
Posts: 424

Posted:

AlanP

Tim's posting was from Georgia law.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Alan,

As John pointed out, that section was from Georgia Law.

If you are looking for your State,Louisiana, you can click on the following to go to
Title 12 Corporations and Associations

Scroll down to statutes 12.223 for info on Corporate records and reports.

NOTE: this would only apply to your HOA if the Association is incorporated. Additionally, your State's HOA or Condo laws would also apply.

Tim

ThomasD2 (California)
Posts: 208

Posted:

This code is useful, where did it come from?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Thomas:

The various codes posted here are from both Georgia and Louisiana. If you are looking for information regarding CA then please review: http://www.davis-stirling.com/

On this site you can put certain information in the search box on the top right corner of the website page and it will give you a list of statutes or case law to review.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Thomas,

As Janet pointed out, those codes are from the GA and LA corporate code.

Typically most associations are incorporated. If they are, they must follow the corporation codes/laws in the State they are incorporated in (usually the State they are physically in but not always). This is in addition to any hoa/condo laws that State has.

To view the corporate laws for your state just do a simple internet search. I usually try to stick with an official site from the State as those are typically kept up to date.

You should also verify if your Association is incorporated as a non-profit or non-stock corporation (most are), as the State may have different laws specifically for those type of corporations.

Again, corporate laws only apply if the Association is incorporated.

Tim

RogerB (Colorado)
Posts: 5,067

Posted:

Quote:

Posted By LawrenceC1 on 03/04/2011 12:43 PM
Jody,

How can a voluntary organization enforce covenant standards? Especially against someone who hasn't joined voluntarily? Only if an obligation to honor the covenants conveys with ownership of the property does the HOA have legal standing to make rules.

You are likely correct that the homeowner has no right to view Association documents, but it is also true that your HOA has no right to require the homeowner to abide by the covenants.

The Covenants are conveyed with each title transfer. Every owner agrees at closing to comply with the Covenants regardless of whether or not they are a member of the HOA. A voluntary HOA's ACC is usually conveyed the authority within the Covenants to approve exterior modifications. A voluntary HOA has the right, as does any individual homeowner to enforce violations of restrictions in the Covenants through legal action.

Members in good standing of a voluntary HOA normally have the right to view all HOA records with few exceptions - such as legal documents. However, there could be costs involved for time and expenses involved if there is a professional manager.

LawrenceC1 (Georgia)
Posts: 480

Posted:

Roger,

Either obligations convey with property ownership or they don't. It they don't, the HOA cannot enforce those obligations.

Compulsory membership is another way of saying that obligations are legally binding and are accepted at closing. Voluntary membership means that there is nothing legally binding on those who choose not to join.

RogerB (Colorado)
Posts: 5,067

Posted:

Quote:

Posted By LawrenceC1 on 04/25/2011 7:49 AM
Roger,

Either obligations convey with property ownership or they don't. It they don't, the HOA cannot enforce those obligations.

Compulsory membership is another way of saying that obligations are legally binding and are accepted at closing. Voluntary membership means that there is nothing legally binding on those who choose not to join.

Covenants are independent of the HOA and apply to all homeowners who buy property which have Covenants. The Convenants transfer with the title and continue to be in effect as specified within the Covenants. A voluntary HOA can legally enforce restrictions in the Covenants. We manage a voluntary HOA in Colorado where this is done all the time. Our primary management function is monitoring and enforcing violation of restrictions for all owners; not just HOA members. A few years ago I had to explain this to a non HOA owner who claimed to be a real estate attorney. At first he just wanted to argue so I sent him a 2 page letter. He promptly corrected the violation.

LawrenceC1 (Georgia)
Posts: 480

Posted:

So what is the difference between a member and a non-member with regards to a voluntary HOA where there are also Covenants that transfer with the title? Do they both pay dues? Do they both vote at the annual meeting?

RogerB (Colorado)
Posts: 5,067

Posted:

Lawrence,
Every owner legally agrees to comply with the Covenants when they purchase their property. A Buyer often is not aware that they have made this legal agreement at closing due to the numerous documents being signed. In a voluntary HOA the owners may elect to become member of their HOA by paying dues. Those owners who do not chose to volunarily pay dues are not members of the HOA.

Thus, the difference between member and non-member is a no brainer. But what about the difference between "owner" and "member"? Owner is used when discussing the property. For example every owner (not member) is eligible and is counted when voting on amendments to the Covenants - they do not need to be members of the HOA. By contrast member refers to being a member of the HOA. Members only (no non-members) are eligible to vote on HOA matters, such as amendments to the HOA's Bylaws.

Is there a difference between "dues" and "assessments"? Yes.
Assessments are on the property and are payable by the owner. Assessments are often mistakenly referred to as dues. Dues are paid by a person who wishes to become a member and are paid volintarily.
For a manditory HOA the owner must pay the assessment. For a voluntary HOA an owner may become a member by paying dues.

Finally, "manditory" vs. "voluntary" HOA. For a manditory HOA all owners are automatically members of the HOA. For a voluntary HOA owners may chose whether or not to join the HOA.

LawrenceC1 (Georgia)
Posts: 480

Posted:

Roger,

So if I am understanding your scenario, non-member owners must pay assessments and adhere to restrictions in the Covenants. I am assuming that there must be a Treasurer to collect assessments and allocate funds. There must also be an Architectural Committee to manage compliance to the restrictive Covenants, send out notices of violations, collect fines, etc.

All this is what is generally known as a compulsory HOA. It is splitting hairs to say that this situation is a voluntary HOA simply because there are two tiers of membership and those who pay dues on top of assessments are granted privileges of a higher tier. Bottom line, it is compulsory on all owners to pay assessments and abide by covenant restrictions.

A voluntary HOA is generally understood to be a situation where opting out of the HOA means there are no dues, no assessments, and no restrictive covenant enforcement. Membership in a voluntary HOA is entirely optional and nothing transfers with the title to the property.

In the case of the original post to this thread, I believe that Jody's HOA is voluntary as described in Georgia law for Property Owner Associations, and there is no compulsory payment of assessments or adherence to covenant restrictions.

RogerB (Colorado)
Posts: 5,067

Posted:

Lawrence, I thought my post was clear, but apparently you did not understand it. Is Georgia law for POAs that different than those of the three states in which I have been involved with HOAs?

Read this sentence until......
"The only time there is not compulsory adherence to Covenant restrictions is when there are no Covenants." Forget about the type of HOA, that has no legal bearing on the enforcement of violations of restrictions.

HOA non-members of a Covenant controlled community pay nothing but as property owners they have restrictive Covenants which can be legally enforced. The restrictive Covenants "run with the land", i.e., are part of the property. You are wrong to presume that nothing transfers with the title. All owners have the same restrictive Covenants, makes no difference whether they are members of an HOA. Why did you presume there are two tiers of membership or paying dues on top of assessments? Again you are misguided.

JodyW1 (Georgia)
Posts: 7

Posted:

I belive that Roger is corect. We do have a voluntary HOA but that does not exempt one's responsibility to abide by the covenamts as they were not created by the HOA but by the developer. At closing everyone is given a copy of the covenants. It is true that in most cases a developer has the forethought to include in the covenants that all oewrs must be required to join the HOA when it is formed (typically after a percentage of the lots are developed).

What has happened in our case is the developer has turned over the enforcement of the covenants to the HOA. That would be no different than hiring an outside firm to enforce them. Although our homeowners are not required to join because of the lack of necessary language in the covenants, they do not have a choice about complying with the covenants.

We have met with the developer ( he is actually a homeowners also - alal 3 of them) and the goal is to get the covenants changed. The problem is I get MANY different opinions as to the steps to get them changed. My fear is that it will take 100% affirmation from all onwers (even vacant lot owners) to get them changed. If that is the case we might as well give up as I have very little faith that this is possible.

If anyone has anything that would lead me to believe we can change covenants with less than 100% vote, please share that.

Jody

TimB4 (Tennessee)
Posts: 21,059

Posted:

Jody,

To go from a voluntary Association to a mandatory association you would indeed need 100% of the owners to agree.

I'm fairly certain that just amending the CC&R's without 100% agreeing would be over turned if challenged in a court of law.

Tim

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