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JanineR (Tennessee)
Posts: 259
Posted:
Changing the frequency of an annual audit
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There have been some major questions about finances and numbers not adding up.

I sent a certified letter requesting a copy of the annual audit for the last three years.

The treasurer took offense to this request. Eventually the property manager prepared an email that said audits have not happened for the last four years. The PM said that the board voted in a 2017 BOD meeting to only do an audit every 3 years.
And that the Board did not do an audit last year 2020 with everything going on with the tornado.

The PM sent me a copy of the meeting minutes of 2017 and it reads exactly like this:

[Motion] Make a motion to engage full Audit for 2017 and discuss doing Review every three years thereafter.
[Approved] Motion made to conduct audit review every 3 years. Audit review meets the intent of the by-laws.

There are no meeting minutes in 2019 or 2020 as PM suggests to approve a motion that the “annual” audit be again deferred from 2020 to 2021.
Nothing was put in the budget for 2020 for an audit, even though these budgets were prepared in 2019 before knowing what was going to happen in 2020.

Question: Can the Board vote amongst themselves to change the frequency of the audit?
Bigger Issue: Financial numbers don’t add up.

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Property background
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Condos, Tennessee non-profit incorporated, approx. 145 units, 5 board members, 3 the same from the 2017 minutes . Same management company over the last 11 years, different contacts.

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Master Deed wording
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Financial Statements:
If the Condominium consists of fifty (50) or more Units, then the Association will make available to the holder, insurer, or guarantor of any first mortgage that is secured by a Unit, upon submission of a written request, an audited financial statement pertaining to the Association for its preceding fiscal year.
Such an audited financial statement will be prepared for each of the Association's fiscal years and shall be made available for inspection not later than one hundred twenty (120) days after the end of each pertinent fiscal year. If the Condominium consists of fewer than fifty (50) Units, and there is no audited statement available, then the holder, insurer, or guarantor of any first mortgage secured by a Unit may, at its expense, have an audit of the books, records and financial statements of the Association prepared and delivered both to it, and to such holder, insurer or guarantor.

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ByLaw wording
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f) An audit of the accounts of the Association shall be made annually by a certified public accountant, and a copy of the report shall be furnished to each member not later that on hundred twenty (120) days following the year for which the report is made.

AugustinD
Posts: 3,698
Posted:
Quote:
Posted By JanineR on 04/15/2021 11:51 AM
Question: Can the Board vote amongst themselves to change the frequency of the audit?
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--------------------------------------------
Master Deed wording
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Financial Statements:
If the Condominium consists of fifty (50) or more Units, then the Association will make available to the holder, insurer, or guarantor of any first mortgage that is secured by a Unit, upon submission of a written request, an audited financial statement pertaining to the Association for its preceding fiscal year.
Such an audited financial statement will be prepared for each of the Association's fiscal years and shall be made available for inspection not later than one hundred twenty (120) days after the end of each pertinent fiscal year. If the Condominium consists of fewer than fifty (50) Units, and there is no audited statement available, then the holder, insurer, or guarantor of any first mortgage secured by a Unit may, at its expense, have an audit of the books, records and financial statements of the Association prepared and delivered both to it, and to such holder, insurer or guarantor.

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ByLaw wording
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f) An audit of the accounts of the Association shall be made annually by a certified public accountant, and a copy of the report shall be furnished to each member not later that on hundred twenty (120) days following the year for which the report is made.
JanineR, does the Master Deed say who can amend it? Do the Bylaws say who can amend the Bylaws?

If only the condo membership (votes from all approx. 145 units) can amend these governing documents, then no, the Board cannot legally change the frequency of the audit.

The question that remains is how much power do you have to force an annual audit. In theory, lots. In practice, you likely would have to hire an attorney; threaten a lawsuit; and possibly go to court.

Keep in mind a bona fide audit all by itself is expensive. There are lower levels of review that might suffice, depending on how one wants to interpret the Bylaw.
JanineR (Tennessee)
Posts: 259
Posted:
From how I read them, both the Master Deed and the Bylaws require membership vote of 67% for amendment.
And become effective once registered with the County Register.
Neither of which has happened.

I can paste the amendment clauses of both of those documents in case I am reading them wrong. But they are long.

I'm estimating about $5k for an average annual audit would be in the budget given past financials.

I'm less concerned about the years 2017, 2018 and 2019, even though I think we were afforded them, and I have seen many financial discrepancies in those years. Its probably not worth the back cost at this point.

The year I am mostly interested in is 2020, and the audit cost will probably be a lot higher due to being hit by a tornado and having major extra contracts under the Associations name.
A huge amount of numbers are not adding up. And there are now "pass thru" account. Etc. I'd feel more comfortable with pushing for an audit on 2020, with the knowledge that its not in the Boards authority to vote it out.
AugustinD
Posts: 3,698
Posted:
Quote:
Posted By JanineR on 04/15/2021 1:06 PM
From how I read them, both the Master Deed and the Bylaws require membership vote of 67% for amendment.
Nationwide super-majorities of two-thirds or 3/4s, of the entire HOA membership (a super-majority of all owners), for amending the Master Deed (a.k.a. covenants) or Bylaws are common. I would bet your read the amendment sections correctly.

Quote:
Posted By JanineR on 04/15/2021 1:06 PM
A huge amount of numbers are not adding up. And there are now "pass thru" account. Etc. I'd feel more comfortable with pushing for an audit on 2020, with the knowledge that its not in the Boards authority to vote it out.
If there are not provable signs of crime in 2017-2019, your choice to focus on 2020 sounds wise to me. I would start with a short letter to the board saying, roughly:

Dear Board of Directors,

The Master Deed at Section ___ and the Bylaws at Section ____ require an audit. By May 15, please inform me of the date that you intend for this audit to happen and the company you intend to use for the audit of the 2020 books.

Thank you,

[name]
[address, phone, email et cetera]

Stay emotionless. Start thinking about how much money you want to spend on an attorney to make this happen.
AugustinD
Posts: 3,698
Posted:
Forgot to add:

Electing a new board is by far usually the quickest and least expensive way to turn things around.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By JanineR on 04/15/2021 1:06 PM
The year I am mostly interested in is 2020, and the audit cost will probably be a lot higher due to being hit by a tornado and having major extra contracts under the Associations name.

I'm thinking that the 120 day delivery limit is for ordinary circumstances. If you got hit by a tornado, there is reasonable justification for your HOA to go well beyond those 120 days.

Sikubali jukumu. Read all posts at your own risk.
MaxB4
Posts: 3,513
Posted:
Below is from Tennessee Non-Profit Corporations:

48-66-201. Financial statements for members.
(a) A corporation shall prepare annual financial statements, which may be consolidated or combined statements of the corporation and one (1) or more of its subsidiaries, as appropriate, that include a balance sheet as of the end of the fiscal year and a statement of operations for the year. If the financial statements are prepared for the corporation on the basis of generally accepted accounting principles, the annual financial statements must also be prepared on that basis. On demand in the form of a document from a member, a corporation must furnish that member with its latest annual financial statements as set out in subsection (c).

(b) If annual financial statements are reported upon by a public accountant, the public accountant's report must accompany them. If not, the statements must be accompanied by the statement of the president or the person responsible for the corporation's financial accounting records:
(1) Stating the president's or other person's reasonable belief as to whether the statements were prepared on the basis of generally accepted accounting principles and, if not, describing the basis of preparation; and
(2) Describing any respects in which the statements were not prepared on a basis of accounting consistent with the statements prepared for the preceding year.

(c) A corporation shall deliver in the form of a document the annual financial statements to each requesting member within one (1) month after notice of the demand; provided, that with respect to the financial statements for the most recently completed fiscal year, the statements shall be delivered in the form of a document to the member within four (4) months after the close of the fiscal year.

In addition, I found three HOA's in Tennessee having the same language in regards to an annual audit.

As a manager in California, I have had to contract for three different types of financial review based on their Annual Income.

1) Annual Review, 2) Audit Pretty much the same, generally price is $1200 for Review and $1500-$2000 for audit. I would give the CPA the same docs whether a review or audit. Even the final report is similar.

and3) Forensic Audit: Forensic Audit. A forensic audit is more intrusive (and more expensive) than a regular audit and uses an investigative approach to financial records. It is often conducted for the purpose of ferreting out fraud, embezzlement or other financial improprieties. Never did one of these, but heard they can run $5000.00 depending on level of investigation.

In the number of years of forwarding the reports to Boards, I don't think I have ever had one that understood what they were looking at.

Getting back to the question of changing the frequency on these financial reports, unless the Board has the power to change solely on their own, this must be voted and and approved by the membership.

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