Access to POA records

Started by RandyB4 • 10 replies • 1379 views

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RandyB4 (California)
Posts: 25

Posted:

Our board president is telling one on our members that she can not look through the files at our bookeepers office. The President is saying there is information about members being late in their dues payment in the files that only board members may see. Here is a quote from our bylaws, "The books, records and papers of the association shall at all times, during reasonable business hours, be subject to inspection by any member". I think it's clear, members have the right to look at ALL records. Also the president has told this member she (the pres.) will ask the lawyer for the association if these record can be keep from said member. Is the President for going to lawyer (without board permission, who will charge the association for his service), also doing another wrong?
Regards
Randy

SusanW1 (Michigan)
Posts: 5,202

Posted:

'be subject to inspection' does not mean rifling thru the records at the bookeeper's willy-nilly.

The person requesting the information should be specific about what they want to see. And be prepared to pay for copies or other costs that may be incurred by staff pulling the material

But the books are not 'left open' for anyone to look through on a witch-hunt.

What information can not be accessed through a P/L statement, Balance sheet and year to date vs. budgeted statement.

If there are outstanding due , the board should explain what they are doing to collect them.

.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

We just went rounds and rounds on this forum about this very subject. The horse has died, brought flies, and has now been made into glue... You may want to view some of those posts.

The short answer is that a member has the right to see ALL the records but not an individual member's account history. That is personal privacy and is only handled with board members due to the sensitivity issues.

You can see your OWN account records and be given the GENERAL numbers such as how much was collected and in the bank. However, asking to see your next door neighors or that property no one is doing anything with, is only for BOARD members only. That is because it is the BOARD that can take any kind of action to remedy the situation not an individual member.

Allowing members to see others personal account information can lead to vigilantism and violates individual privacy. Would you want someone to see your account history? Then why allow someone to view it? Their answers aren't there. The answers don't come from witch hunting but from ditch digging...

Former HOA President

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By MelissaP1 on 09/10/2011 5:53 PM
We just went rounds and rounds on this forum about this very subject. The horse has died, brought flies, and has now been made into glue... You may want to view some of those posts.

The short answer is that a member has the right to see ALL the records but not an individual member's account history. That is personal privacy and is only handled with board members due to the sensitivity issues.

You can see your OWN account records and be given the GENERAL numbers such as how much was collected and in the bank. However, asking to see your next door neighors or that property no one is doing anything with, is only for BOARD members only. That is because it is the BOARD that can take any kind of action to remedy the situation not an individual member.

Allowing members to see others personal account information can lead to vigilantism and violates individual privacy. Would you want someone to see your account history? Then why allow someone to view it? Their answers aren't there. The answers don't come from witch hunting but from ditch digging...

I would check your state statutes...in some states any records including each individuals records are available to be looked at by members.

In short a request should be made by the person as to what they want to see. Records are open to any member, in some states everything is open, in others you can protect the privacy of each homeowner.

RogerB (Colorado)
Posts: 5,067

Posted:

Following is an example some HOA's we manage have established:

Rules and Regulations on Inspection and Copying of Association Records

The records of the Association shall be reasonably available for inspection and copying during
normal working hours to a Unit Owner, or their appointed representative, in response to their good
faith request for a proper Association purpose. The Association may withhold records such as those
protected by attorney-client privilege and information which might be used for soliciting purposes.
No owner shall disclose Association information which can be used for soliciting purposes. Privacy
concerns, however, are narrowly construed. For example, despite what might be embarrassing to a
homeowner, delinquent account information can not be withheld from an Owner if the request is
made in good faith and for a proper purpose.

The Owner shall submit a written request to the Registered Agent providing a) Name, b) Address,
c) Date, d) purpose, e) Specific records for which copies are requested, f) Specific records for which
only onsite review under supervision are requested. Upon receipt of a request the Agent shall
contact the Owner to schedule a meeting within five business days and advise on the cost involved.
The Association shall disclose certain information to all Unit Owners annually and to an Owner
when selling of a Unit. Disclosure of information may be accomplished by various means: (1)
maintaining a binder at the Registered Agent’s office; (2) sending by E-mail upon request; (3)
posting on an internet web page with accompanying notice of the web address via first-class mail or
E-mail; (4) first-class mail; and (5) personal delivery.

CarolR11 (Colorado)
Posts: 2,563

Posted:

Randy, the below per Calif. Civil Code, which in most cases, including this one, supersedes HOA's bylaws. Note that personnel's salaries are only available if the person or persons are actually employees of the HOA and are not employees of a vendor, e.g., a security company or management company. I find Davis-sterling.com invaluable.

So there are many records that the member may review, but s/he needs to request them in writing, the HOA MAY charge copying fees and the member, as others have advised, should be specific. Out of curiosity, what does this member want to review?

RECORDS NOT SUBJECT TO INSPECTION

The following records are not subject to inspection (see Civil Code §1363.05(b) and Civil Code §1365.2(d):
executive session minutes and information,
personnel records (other than salaries),
sensitive litigation files and records protected by the attorney-client privilege,
pending contracts,
legal invoices,
records likely to lead to identity theft,
records likely to lead to fraud,
records reasonably likely to compromise the privacy of an individual member (such as owner records, including goods or services provided to members for which the association received monetary consideration other than assessments),
disciplinary actions, collection activities, or payment plans of other owners,
personal information, including social security number, tax id number, driver's license number, credit card account numbers, bank account number, and bank routing number,
interior architectural plans for individual homes,
private owner correspondence to the board (unless a letter is used as evidence in a disciplinary action against another owner, in which case the disciplined owner has a right to see it).
board packets

Read more: Records Not Subject to Inspection http://www.davis-stirling.com/MainIndex/RecordsNotSubjecttoInspection/tabid/1588/Default.aspx#ixzz1Xfnqw7w4
from Davis-Stirling.com by Adams Kessler PLC.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By RandyB4 on 09/10/2011 1:27 PM
Also the president has told this member she (the pres.) will ask the lawyer for the association if these record can be keep from said member. Is the President for going to lawyer (without board permission, who will charge the association for his service), also doing another wrong?

Randy:

My experience with board members is that they are totally ignorant of their legal obligations. Therefore, anything that a board member does to educate themselves is good for the association. I have been trying for years to get my board to seek legal advice on a number of issues and they continually refuse, claiming it is a waste of money.

EbonyJ (Tennessee)
Posts: 62

Posted:

I agree with Larry.. If the president has any questions about withholding the information, it is wise to obtain an attorney's opinion.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

So you agree the president should spend about $200 - $500 of the association's money to get an attorney's opinion? Essentially, that's what happens whenever you allow your HOA to depend on attorneys for any kind of advice and follow through. There are just some things that are answered in your documentation. If you can't translate your documentation, then it's a good idea for you the individual to get the legal opinion instead of making ALL the people in your HOA pay for it. The HOA is ONLY funded by it's members for it's members. So the funds to pay the lawyers comes from those funds...Or in better terms, your dues money.

Just like the HOA is only funded by it's owners, it is also governed the same way. This sounds like an in-house discussion to find out the need for access. Usually there is an issue that person wants to address so they go on a 20/20 witch hunt. Instead they should ask the question they have on their mind and deal with it.

Former HOA President

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By MelissaP1 on 09/12/2011 12:29 PM
So you agree the president should spend about $200 - $500 of the association's money to get an attorney's opinion? Essentially, that's what happens whenever you allow your HOA to depend on attorneys for any kind of advice and follow through. There are just some things that are answered in your documentation. If you can't translate your documentation, then it's a good idea for you the individual to get the legal opinion instead of making ALL the people in your HOA pay for it. The HOA is ONLY funded by it's members for it's members. So the funds to pay the lawyers comes from those funds...Or in better terms, your dues money.

Just like the HOA is only funded by it's owners, it is also governed the same way. This sounds like an in-house discussion to find out the need for access. Usually there is an issue that person wants to address so they go on a 20/20 witch hunt. Instead they should ask the question they have on their mind and deal with it.

There is nothing wrong with seeking an opinion from a lawyer on what documents to release etc., as long as your board approves the expense. I would rather spend $500 of my association's money to get a ruling that could protect my association from a lawsuit...plus that ruling is now something you can fall back on each time you get a document request. HOA's are only in house issues until you are sued in a court of law.

The problem with most documents is they were written by lawyers and I believe there is a huge conspiracy amongst lawyers to write documents so confusing and complex that lay people have to get a laywer's opinion, hence stuffing their pocketbooks!

State laws vary from state to state, if you truly are in doubt and you truly are concerned about what you need to release you should get a legal opinion.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By MelissaP1 on 09/12/2011 12:29 PM
So you agree the president should spend about $200 - $500 of the association's money to get an attorney's opinion?

This question wasn't directed at me but I thought I would add my two cents.

I am not of the opinion that every decision, letter or action needs a legal opinion.

however, if a board is split on the interpretation of the law or of the governing documents associated with an issue, it is always good to do more research to try and resolve the interpretation. If the Board remains split on the interpretation after examining the additional research, and the issue could involve potential litigation, I do believe that spending $500 to $600 for a legal opinion would be money well spent.

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