request for association documents (DENIED)

Ok I am in California and have submitted the following request for association documents:

July 16, 2007

Dear

I am formally requesting copies of all association records afforded to me under the law for the time period between January 1, 2006 through July 16, 2007. I understand that there might be costs involved with the copying and submission of these files and accept said costs to a maximum charge of $200.00 as stated in the law. Please sign and attach certificate under penalty of perjury and attach all records to my place of residence at 3026 Club House Circle Costa Mesa CA 92626. Under California law the time frame for such submittal of said documents are as follows:

(i) The time periods for which specified records shall be provided is as follows:
(1) Association records shall be made available for the current fiscal year and for each of the previous two fiscal years.
(2) Minutes of member and board meetings shall be permanently made available. If a committee has decisionmaking authority, minutes of the meetings of that committee shall be made available commencing January 1, 2007, and shall thereafter be permanently made available.
(j) The timeframes in which access to specified records shall be provided to a requesting member is as follows:
(1) Association records prepared during the current fiscal year, within 10 business days following the association's receipt of the request.
(2) Association records prepared during the previous two fiscal years, within 30 calendar days following the association's receipt of the request.
(3) Any record or statement available pursuant to Section 1365 or 1368, within the timeframe specified therein.
(4) Minutes of member and board meetings, within the timeframe specified in subdivision (d) of Section 1363.05.
(5) Minutes of meetings of committees with decisionmaking authority for meetings commencing on or after January 1, 2007, within 15 calendar days following approval.
(6) Membership list, within the timeframe specified in Section 8330 of the Corporations Code.
(l) There shall be no liability pursuant to this section for an association that fails to retain records for the periods specified in
subdivision (i) that were created prior to January 1, 2006.

Thank you for your timely assistance in this matter

Sincerely

So now the association president will not respond to this request and the time periods for the documents are fast approching and I need to know what do I do next to get the association to turn over records? I don't have the money to hire an attorney so I am trying to handle this myself and would like to know if anyone can provide assistance on where I can get information on how to file this in court. Thank you for all your help

Geesh Melissa, its really none of your business why someone wants to look at THEIR HOA documents. The point is that you, as a homeowner, are entitled to see any and all documents pertaining to the HOA with the exception of personal info. If the board gets nervous about this kind of request, then they may be trying to hide something.

Cabgret:
Your purpose would be better served if you quote the direct statement/s from your assn's official documents (Bylaws) in which the process for a resident to review documents should be clearly spelled out.

Usually, (if Bylaws can be 'usual') the resident is able to go to the office where files are kept to review the records in question. Obviously you must give the Prop.Mgr./Board time to retrieve them for your review.

For you to demand the copies/documents as you have done may not be the best way to handle.

Cabgret,

18 months worth of files is an awful lot of paper. My HOA fills two storage boxes worth of files every year, so 18 months of files would be about three ten pound file boxes.

If an owner in my HOA wants to review documents, they are invited to the management company offices and can review all the documents there and have copies made of anything that they are allowed to obtain.

Perhaps you should ask to review the original documents from the file boxes yourself instead of requesting that a thousand pages of files be copied and shipped to you.

Cabgret,

You have received some great advice. I too think it would be in your best interest to specify exactly what you want mailed to you, because as PatrickH had stated your request would cost a tremendous amount of money/time to copy and mail to any one person. You’re literally talking hundreds upon thousands of papers (many of which may not have any importance to you what’s so ever!

I would specify which documents would be helpful appose to requesting several months, as you have. This request may help expedite such request in a timely manner.

I believe what MelissaP1 was stating was for you to provide more details pertaining to your request that way, many of the members on this site, could give you better advice. I would think that the only thought she had was to help you. I’m sure there wasn’t any other intention.

Best of luck
Keep us informed
Chuck W.

http://ag.ca.gov/consumers/general/homeowner_assn.htm

Consumers
HOMEOWNER ASSOCIATION / NON-PROFIT MUTUAL BENEFIT CORPORATIONS
The Attorney General has authority under Corporations Code section 8216 to intervene, in appropriate situations, on behalf of members of a non-profit mutual benefit corporation (such as a homeowners association) who are denied certain specified rights. These rights include, for example, failure to:

Provide a member access to books and records of the corporation
Hold regular meetings of members
Provide annual financial reports to members
Provide a list of names and address of members
Other complaints may involve civil disputes in which the Attorney General has no statutory authority to intervene. You may wish to contact a private attorney if your complaint involves the following:

Dispute over services or maintenance
Request for an interpretation or legal advice on association rules
Billing dispute or monetary claim you may have against the corporation
Disputes between members and the governing body involving the capacity, competence, propriety, or wisdom of Governing Board decisions
After reviewing a complaint, and if appropriate, the Attorney General may send a "Notice of Complaint" letter with a copy of the submitted complaint to the corporation. We request that the corporation responds to both our office and the complainant within 30 days.

Many times our "Notice of Complaint" will be sufficient to prompt a response from the board of directors. However, you may wish to discuss your problem with your own private attorney.

To file a complaint by regular mail or email, use the complaint form available on this website.

Additional information also is available from the California Department of Real Estate.

http://www.dre.cahwnet.gov/faqs_cid.htm
Department of Real Estate

FAQs: Common Interest Developments

Q. - What about homeowner associations disputes?

A. - We suggest that members refer to their governing documents (Articles, Bylaws, Declaration, etc.) for dispute resolution remedies. The California State Attorney General's office provides some oversight for incorporated homeowner associations. Depending on the nature of the problem, you may consider seeking the advice of a private attorney or contacting your local district attorney's office.

If the subdivider still owns interests within the project, we recommend that the association and/or owners contact the Department of Real Estate for possible assistance. The Department's powers are generally limited to preventing the subdivider from marketing the remaining units in the project, if wrongdoing is substantiated.

Q. - What are my rights as a member of a common interest development?

A. - The Department of Real Estate publishes a brief overview of the rights, duties and responsibilities of both associations and individual owners in common interest developments. Click here to go to the on-line version of the Common Interest Development (CID) brochure.

Some of the statutory basis for the operation of CID's can be found in:

Civil Code 1350, et seq. (The Davis-Stirling Act)

Corporations Code 7110-7160 (Nonprofit Mutual Benefit Corporations Formations and Powers)

Corporations Code 7210-7215 (Corporate Duties and Responsibilities)

Corporations Code 7220-7225 (Selection, Removal and Resignation of Directors)

Note: This is only a partial listing of the relevant Corporations Code Sections which may apply to a CID.

Here is the link to CA Dept of Consumer Affairs
http://www.dca.ca.gov/publications/small_claims/index.shtml

Here is a copy from the code, notice it is ($500) for the denial of each separate written request.

Civil Code §1365.2. Inspection of Books and Records
(f) A member of an association may bring an action to enforce the member's right to inspect and copy the association records. If a court finds that the association unreasonably withheld access to the association records, the court shall award the member reasonable costs and expenses, including reasonable attorney's fees, and may assess a civil penalty of up to five hundred dollars ($500) for the denial of each separate written request. A cause of action under this section may be brought in small claims court if the amount of the demand does not exceed the jurisdiction of that court. A prevailing association may recover any costs if the court finds the action to be frivolous, unreasonable, or without foundation.

You need to actually visit the links, since there are items that allow you to click and open up other documents.

Roger first thank you for your reply. The 90% is stated in our CC&Rs (Any member of the board may be removed from membership by a vote of the owners; provided, that unless the entire board is removed, an individual member shall not be removed if the number of votes against his/her removal exceeds ten (10) percent of the votes cast with an existing quorum. four members of the board shall constitute a quorum and, if a quorum is present, the decision of a majority of those present shall be the act of the board). Please also see the davis sterling act example:

EFFECT OF CUMULATIVE VOTING
ON RECALL OF DIRECTORS

If the CC&Rs or Bylaws provide for cumulative voting, then removal one or more directors (unless the entire board is removed) is almost impossible because the vote for removing a director can be blocked by a minority of members Corp. Code §7222(b) according to the following formula:

M + 1
X = D + 1 X = # needed to block recall
M = # of members of the Assn
D = total number of directors

Example: If an association has 100 members, a five member, board and one director subject to recall, only 18 no votes are needed to block recall (even if 51 owners vote in favor of recall). Failure to vote is a vote against the recall. Corp. Code §7222(b)(1)

100
+ 1 = 17.67 = 18 (rounded)
5 + 1

To answer your question regarding the management company, they are just as frustrated with our president in that they give him advise and he does not follow it. As an example the management company sends out board packs to him to distribute to the board members and he takes out what he wants and replaces it with his own agenda items. As to our corporation's registered agent, if you are talking about the agent that is listed on our coporate papers that is signed by the state of California then the name listed on the certificate is someone that hasn't been affiliated with our community since 1996 and no one seems to know who it is and the address and phone number provided basically don't exist. I am new to all this and we are really trying not to remove the entire board, mainly because of the time it takes to run a new election which he would still be empower and enacting rules and fines without and authority. We also know because he has the support of at least 9 owners and the fact that we have a board of directors of 7 (wow) and have cumlative voting that he will ineviatbly get appointed back on the board.

If you are looking at the Articles of Incorporation, then what you are seeing is the name of the initial agent.

To find the current agent, go to this website

http://kepler.ss.ca.gov/list.html

this other site will give a little more info

https://businessfilings.sos.ca.gov/

It seems that there is one possible solution, and that is to get say 4 or 5 other folks to submit (registered mail) similar requests to EL PRESIDENTE. Judging from what you have said, it would be unlikely that they receive a response - do this twice, then file in small claims court. When it is learned by his 9 friends, that you all got $5,000.00 of their hard-earned money, and others are going to follow suit (pun intended), guess who'll be calling you to start the recall process.

I know that many folks will say that you will also be hurting your own pocket (which I tend to disagree with), but this individual has left you no choice but to utilize the tool that our legislators in their infinite and magnaminous wisdom have provided to deal with this exact situation which you now face.

CabgretH - I'm still a little confused here. You say that there are 9 homeowners who support your President. Are any of these 9 homeowners on the Board? If not, then how does the rest of the Board feel about this President?

If the Board does not support him, then the Board should be able to remove him from his position as President with a simple majority vote of the Board members (depending on your docs). He would still be a member of the Board, just not the President of the Board.

I am new on our BOD, the bottom of the list. I am really wanting to get our Homeowners together and work things out for the community. Our BOD is doing things their way. I had gotten bids for some painting and the Pres had gotten on. When we discussed it, the manager pops up and says he know someone, that would not be expensive. The paint job is to paint the curbs, which is about 80 feet to paint. The company he recommend want 2800.00 and we think that is way to much. The BOD always seems to then complain gives it to the guy. I think my landscaping guy is over charging us. I ask to see his contract and any other contracts we have such as the pool guy and the cleaning lady. Our electian. The board asked my why was I so against Mark. I said I wasnot against Mark, but I wanted to know what are his responbilities in the contract. Is he responsibly for digging up little bushes that are dead as part of his job description. When I asked to see them, they ask why and I said that I wanted to learn about what he is required to do for 3000.00 amonth.
Our property has small scrubs and grass. It take about four hours to do the property. I know that they replace sprinklers and cut scrubs when needed. We have noticed that our grass is getting a lot of weeds and thistlers. When is a good time to fertilize. I know they didnot fertilized this year.
Anyway hope you understand what I wanting to do.

Melissa, I hope you actually mean "the Board terminated their contract with the landscaping company." I hope your Board did not hired an employee; and if the landscaper was not an employe they can not be fired. HOA's should hire independent contractors with their duties detailed in the contract and the means to terminate the contract specified. Finally, if the Board did not authorize you to "fire" you had no authority to do so.

Yes, the board fired the landscaper. He was an independent contractor and a member of the HOA. His girlfriend used to do the accounting for us a few years before I got elected. We don't have paid employees of the HOA. Mind you I was the Vice-President for a YEAR prior to being elected as President. So I had heard complaints about his work and even had my own. It was almost the number 1 topic at EACH meeting about his work. The board members had wanted to fire him for a looong time. However, the President wouldn't let them since he was friends with the guy. (I suspect he was also his drug dealer...) So when I got elected, I worked with the board and presented them bids of other contractors. We all agreed to NOT renew his contract. Unfornately, the ex-president had screwed up the original contract and we were forced to pay him for an extra month and pay the NEW contractor at the same time. The contract was to start in April but the original one started in May instead. We hired the new contractor for April. It was a mess to sort out. (I had to go through 5 years of records to find the original contract date). So it is important to pay attention to contract start and end dates and the amount of cancellation notice you must give!!!

I disagree that a regular member doesn't have any rights when it comes to selecting a vendor. Homeowner's have a vote. That doesn't make you powerless. If you apply that right to vote in the right way, you can be heard and you can make a difference. Suggesting and finding bids for the BOD to look at really does help. I often got bids from my regular members that I looked at. I didn't except all of them but I did consider them. Especially, if they were willing to come to a board meeting and present the idea. With a 3 bid system we had in place, it allowed many people to submit whoever they wanted for consideration. You didn't have to be a board member to get things done. Just had to work with the board to do so.