Records Examination Delays

What policy does your HOA have, if any, for the time between a records examination request and the appointment for the examination?

Two weeks to a month is the usual delay at my HOA. The Manager frequently sends the request to the HOA attorney. He also has been known to say that he's preparing a compilation report of the requested records (meaning he wants the requester to accept this instead of the original records) and needs more time. Plus the HOA has a lengthy non-disclosure form that has to be signed by the requester. The form informs the requester that he/she can be held liable by the HOA if he/she releases any information without first getting the HOA's permission.

Anyone know of any good case law that rules that delays such as this fail to make records 'reasonably available,' as many states' statutes require?

In SC, we could jerk you around forever and without a court order you may never see all.

We ran our HOA so openly that records viewing was done monthly at each meeting. Heck, we handed over a hard copy and reviewed the expenses at each meeting. If someone wanted a copy, I'd give them a copy of mine. The meeting notes were posted at the Mailbox a day or two after they were taken in a glass case. Any other random records were kept in a box in the clubhouse closet. The only report/record we kept "guarded" was the collections report. However, that was given to ONLY board members. Which we discussed OPENLY at every meeting on the actions we were taking on those who owed. We did NOT use names but Lot #'s. If someone wanted to know what they owed individually, they could call the accounting firm and get that information about their own account anytime.

I am not one who believes in hiding information from members. They may not like it, believe it, or think there is something being hidden. I say don't be a HOA who can't show their records. Sometimes the best way to stop a "Witch hunt" is to offer up the witches...

Thank you for sharing, Larry. I have wondered about this non-disclosure statement. The case law has discussion of them being used with for-profit corporations, with I think http://caselaw.findlaw.com/de-court-of-chancery/1438736.html being one leading case on the subject (granted, as Shelia pointed out, mostly applicable in Maryland). I feel like this is where our (frankly ridiculous) HOA attorney got this. I wish my state gave a 10 business day limit.

Melissa, I like your HOA's style. Maybe similarly, my motto is, "Transparency builds trust."

KerryL1, my HOA will not share electronic copies of the financials and many other records. Some baloney excuse was made by the Manager about how electronic copies are too easily distributed and lead to falsehoods. (I know: nonsensical.) The records I am currently seeking are (1) a recent plumbing company's report on camera inspections of the sewer lines; and (2) the attorney's invoices.

Hi Kerry, the point you raise is so excellent that it has been addressed in the courts. Nationwide there are three cases (lawsuits that made it to the state appeals court or higher) on the subject of a shareholder-member requesting examination of a nonprofit corporation's attorney's billing statements. Two of these three involved HOAs. All three court opinions balanced the shareholder-members' statutory rights of inspection (in order to ensure corporate misconduct is not occurring) against attorney-client privilege. In sound bite form: In all three cases, the courts ruled that the attorney's billing statements could not be excluded from a requested records examination on account of attorney-client privilege. To me, the various courts' language on the point is similar, eloquent and makes sense.

AugustinD,

If you have a management company, the records would/should be at the management company and it is very reasonable to set a 9-3 time for records inspections, as it is between business hours.

If the records were on site, I would be concerned also.

Hi Tim, I have only sent emails. They are acknowledged within a few days to a week, but never is an appointment set without several email exchanges. In the past (with two other records requests this year), when I have appeared in person, the Manager has said he wasn't ready and sent me away. But I hear you. I have a plan. Thank you all for offering various degrees of reality check.

In CA, the HOA has a the right to charge a reasonable for copies and maybe in Augustin's state too. I think my HOA could charge 15 cents per page, but I don think we even have.

But we have read here previously that it seems some states only permit the Owner to "inspect." Maybe FL was one of them?

Examining records is one issue but the question is how deep and far? As an example it would be near impossible to show someone purchased a $1.98 new toilet paper holder for the clubhouse some 5 years later.

As an example, our available financials to all owners will show that $500.00 was spent during the year for clubhouse maintenance but asking for the $1.98 receipt is a witch hunt and unfortunately it is not uncommon for witch hunters to ask for such.

John, I agree. I understand the standard generally is for a HOA corporation to make records "reasonably available" to members. To me, this sets limits. It seems to me that what is "unreasonable" will depending on the dollar amounts involved and/or how far back the requested records date. Also if the records are in storage off-site, I think the courts expect a HOA member to be patient. I am not sure what the appeals courts have said when records like sewer line inspection reports were done in the last six weeks; the records are on site; the board passed policy a few years ago that records may be viewed Mon and Tue 9 AM -3 PM; and the HOA so far after two weeks is not offering an appointment time. The attorney I saw the other day, unsolicited, elaborated in a few sentences why my neighbors and I had a right to see the legal billing statements, including seeing the details of the assignments given her. We asked for the billing statements going back 21 months. I think importantly, this attorney I saw is one of several volunteers with a free legal clinic, paid for through public funds (and private donations?). I understand the clinic is a part of the "access to justice" movement. The attorney had nothing to gain by his counsel except to minimize: (a) unnecessary lawsuits; (b) tying up the courts; and (c) costs to the taxpayer for unnecessary court services.

Melissa, thank you for validating. A group of my neighbors even inadvertently got a copy of an email that the HOA manager sent to the HOA attorney this past June. The HOA manager wrote the HOA attorney that the HOA manager had told a city department to contact the HOA attorney directly. No board vote.

My former HOA did things as you describe. My former HOA's attorney would communicate only with the board designated person, per instructions from the Board.

As so many here routinely advise: We have a few people who are running for the Board, two of them highly experienced in running HOAs with an understanding of their obligations to the governing documents. I am not sure that the current Board will not cheat, though. Three times this year my neighbors and I have submitted formal complaints about limiting voting rights. In all three instances, we prevailed, but not without a lot of invective from the HOA attorney about how out of line we were to complain and ask for our rights to be enforced. I cannot be sure, but it seems like the HOA attorney seems to know that the more unrest he can provoke, the more billable hours it is for him. He seems clueless about his duties as an organizational attorney.

I am thinking these billing statements, when we get them and if the Board and HOA attorney have not monkeyed with them, will help expose some inappropriate conduct. If not, at least their being released to us may help deter abuses in the future. I understand the latter is one of the main purposes of the law requiring HOA corporations to provide records, especially records of how money is being spent to members.

MindyW, agreed. The way I put it is, "Transparency builds trust."

I appreciate getting a reality check from all of you folks with so much experience. My neighbors and I have a plan in place. I will keep the thread updated.

If the delay was from your Management Company .. I personally would FIRE their tails. You do comprehend that they work for the BOD? Potentially they were in bed with the last BOD and trying to see how far can push new BOD.

I can't believe some HOAs. I tell people everything I am allowed to tell them. Every meeting I pass around the disbursement list from our accountant. It has everything that was paid that month. Every February everyone gets the annual list that shows all money spent. All contracts are explained in the newsletter, duration, other bids, costs, company info, etc.

I have never had a request to see anything. Looking through the files I saw the last request was in 2005.

"Inspection of Books and Accounts All Members of the Association and all holders, insurers or guarantors of First Mortgages shall, upon written request and pursuant to O.C.G.A. § 14-3-1602, be entitled to inspect current copies of the Articles of Incorporation, the Declaration, these By-Laws, the Rules and Regulations of the Association and all books and records of the Association during normal business hours at the office of the Association or other place designated reasonably by the Board of Directors as the depository of such items. Copies of the Articles of Incorporation, the By-Laws and all amendments thereto, shall be furnished to any Owner upon request and upon payment of a reasonable charge therefor."

O.C.G.A. § 14-3-1602:

(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.

Update: Three and a half weeks after the initial request, and after making the same request three times, I received all the records today.

In Florida, if you make a valid records review request and do not get a satisfactory response the next step is to seek arbitration through the DBPR. If the arbitrator rules in your favor then you can go to small claims court and seek up to $500, $50 dollars per day for everyday that the Association fails to give you access. The ability to go to small claims court and get that money is written in statute.

Bottom line is they responded within less then 30 days. They may only meet every 30 days so that would be in order. In your state, is there a time limit on how long they can take to respond?

As far as I know, Florida law does not require an association to provide records on request. It allows for the inspection and copying of records with a penalty for non-compliance. It also says that for the most part records need to be kept for seven years, but I am not aware of any penalties for non-compliance.

I agree that record keeping can be laxer than it should be, especially in self managed associations. There can be plain poor record keeping, officers moving without turning over records, and former officers with an ax to grind who refuse to do so.

You just have to be honest and tell members that prior to X date when your mgmt company took over records were not properly kept. However, after that date we can and will be more than happy to provide you with what you need. If they have an issue with that then they need to address with the HOA and prior mgmt company.

Years ago I was brow beaten to taking on an Office Manager position of a non-profit association (non-HOA) to fix a huge mess. I initially turned it down ... the Original President who established and at that time Interim President's other half after finally accepted position joked that it was such a mess nobody would touch it with a 10 foot pole. I only took it to fix the mess and knew was temporary until they moved it to another state. I started in October and the next February had to be prepared for a National Convention attended by many including attendees from other Countries so also needed interpreters. In December a new Interim President informed me the membership wanted to have a full audit done before the Convention. To which I LMAO. I told him prior to my taking over they were "inauditable"! YEP ... There were no records regarding past expenditures for a few years (when a Past President who had affair with the Office Manager and who BOTH could sign checks embezzled). The point is when members or officers asked for certain information, I had to tell them pretty much what I stated in the paragraph above. The open honesty I think went a long way to help the association's future success. People relate well to open honesty ... they do not relate well to hiding or avoiding facts.