Are HOA Violation Records considered personal?

RyanD5 (Arizona)
Posts: 27

Posted:

I'm in Arizona, and https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/33/01805.htm requires HOAs to make records available for inspection with the exception of "personal records."

The HOA management company claims that they cannot divulge information pertaining to issued violations or fines. I maintain that their enforcement actions are subject to inspection by members (an enforcement/violation log). I would also maintain that the payment of fines (if any) would or could be a personal record.

The purpose of the law is for members to be able to see if the HOA is performing its duties and audit the activities of the HOA. Without this, there is no way for members to know if other members are receiving preferential treatment or if the HOA is doing its job.

Thoughts?

I don't suppose there is any legal precedence to answer the question if an HOA enforcement action is an HOA record or personal record?

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By RyanD5 on 09/25/2023 4:59 PM
I'm in Arizona, and https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/33/01805.htm requires HOAs to make records available for inspection with the exception of "personal records."

The HOA management company claims that they cannot divulge information pertaining to issued violations or fines. I maintain that their enforcement actions are subject to inspection by members (an enforcement/violation log). I would also maintain that the payment of fines (if any) would or could be a personal record.

The purpose of the law is for members to be able to see if the HOA is performing its duties and audit the activities of the HOA. Without this, there is no way for members to know if other members are receiving preferential treatment or if the HOA is doing its job.

Thoughts?

I don't suppose there is any legal precedence to answer the question if an HOA enforcement action is an HOA record or personal record?

Here is the specific verbiage from that page:
4. Personal, health or financial records of an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.

My take is that "personal" information would be things like age, email addresses, phone numbers, etc. I think violations would not fall into this, although the case could be made that any fine amounts could be considered protected as "financial" information.

Escaped former treasurer and director of a self managed association.

RyanD5 (Arizona)
Posts: 27

Posted:

Right! I would agree that member payment history could be personal. But an HOA billing history would not be.

KerryL1 (California)
Posts: 14,550

Posted:

Billing to an owner is also financial info and is not subject to other woenrs’ review. Irt’s the same in Calif.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Does the board discuss violations in Executive Session? Then they're confidential - otherwise discussions would take place in the General Session. I also think this is the norm. Even in states where most board discussion and voting has to take place in open session where homeowners can observe, the board has to take care not to identify a particular owner by name. They'll use something like Unit # to identify the person (which fools no one, but that's a different discussion).

Google wasn't totally helpful, but I found an article from 2015 that listed these exceptions to the records a homeowner can inspect:

* Privileged communications between an attorney for the association and the association (note: engagement letters and attorney invoices are rarely considered by courts to be "privileged");

* Pending litigation;

* Meeting minutes from closed, executive sessions

* Personal, health or financial records of a member or employee; and

* Records relating to job performance, compensation of, health records of or specific complaints against an employee.

I get why people would want to know this, but would you feel the same if you were the one who'd been sent a violation notice or fined? Publicizing this sort of information could make the association vulnerable to lawsuits for defamation or ruining someone's reputation - something that can do more harm than uneven enforcement of the CC&Rs.

And here's the thing about dealing with violations: some level of inconsistent enforcement is inevitable. Nobody wants to live in a police state, and ignoring violations will allow a community to go downhill. So many board members try to aim for a happy medium, but reasonable folks can disagree about exactly where that is.

In addition, some of the language in CC&Rs can be vague or may require a judgement call (eg. the nuisance restriction), and no two board members will see things exactly the same way. No single board member will necessarily see things consistently from year to year, either - if they do, they may not be learning.

So expecting totally consistent enforcement isn't reasonable - it's not going to happen no matter how diligent any board is.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By RyanD5 on 09/25/2023 4:59 PM
I'm in Arizona, and https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/33/01805.htm requires HOAs to make records available for inspection with the exception of "personal records."
...
I don't suppose there is any legal precedence to answer the question if an HOA enforcement action is an HOA record or personal record?

-- You referenced the Az Planned Community Act. Please confirm that your HOA is not a condominium.

-- I did a quick search of site:https://law.justia.com/cases/arizona/ and did not find anything.

-- Of note is that a HOA subject to the Az PCA has the right to deny an owner inspection of records that are "Meeting minutes or other records of a session of a board meeting that is not required to be open to all members pursuant to § 33-1804." If your board holds violation hearings in executive session (as is the board's right under Az PCA), then I think the HOA has the legal right to withhold all records pertaining to violations.

RyanD5 (Arizona)
Posts: 27

Posted:

The HOA is not a condominium but is it is a planned community, as I assume most HOAs are.
The HOA is managed by a management company.

I would make the distinction that billing is not financial info as it does not divulge any member's income, source of income, or ability to pay which would be personal. It reveals only that they have been billed. Further, an HOA's accounts receivable is also an HOA document not a personal document. Why would a list of an HOA's creditors and amounts owed be personal records?

Violations are not discussed in public HOA meetings but that doesn't make them personal records. I don't see any reason why any HOA action (other than the exceptions in the law) would be private. The issuance of a warning or a violation is no different than engaging a contractor for services. The members have a right to know what the HOA is doing.

I will also make the argument that the intent of the records inspection is to allow HOs to audit the performance and actions of the HOA. Without this there is no way for members to keep the board "in check." I do not believe the intent of the law is to limit member access to only accounting statements and vendor contracts and reports.

Just as a list of HOA bills paid in the last month would be an HOA document, so also would be a list of violations issued.

Is this a valid comparison?
When the city police arrest a person for DUI, this generates a public court record (not a personal record), of the city's allegations against the accused individual. How is an HOA different?

SheliaH (Indiana)
Posts: 6,964

Posted:

I consider criminal records different from an HOA's vio,action records because everyone in the city or county is paying taxes to provide public safety. That's not tge same as an HIA, where you chose to live there and your assessments help provide services to everyone who owns a home in the community.

I think boards should let homeowners know how rule enforcement is going and you don't have to say things like "everyone living on the 666 block received violation notices for not returning their garbage carts to their homes in a timely manner after pickup.) If you wanted to know who those people are, go to that block, note the house numbers, get a list of homeowners and compare.

OR...issue quarterly reports noting the number of notices sent out, how many were resolved within 30nor 60 days, how many people filed appeals, how many cases were affirmed or reversed, how many are in arbitration, how many are the subject of legal action, and how many of those were won or lost by the association and/or are on appeal. That report can also include the top 5 or 10 violations with reminders on what tge rules are, appeal rights, etc. Periodic polls on tge effectiveness of rule enforcement can also help. Homeowners could provide their opinion on rules that are outdated, need tweaking, or is new rules are needed on certain issues. Ditto on the appeals process- too cumbersome, is a fine schedule needed ir it should be amended, etc?

As Cathy noted, you will never have a perfect system. At different times, people will have different priorities-some may think the board is too lenient, others too harsh, and you'll always have the folks who act like the rules apply to everyone but them. Overall you should see fairness and consistency in rule enforcement.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

RyanD5 (Arizona)
Posts: 27

Posted:

Quote:

Posted By SheliaH on 09/26/2023 3:42 PM
I consider criminal records different from an HOA's vio,action records because everyone in the city or county is paying taxes to provide public safety. That's not tge same as an HIA, where you chose to live there and your assessments help provide services to everyone who owns a home in the community.

The criminal actions and taxes sound like a perfect parallel to HOA violations and HOA dues.

But I think the point is missed here. The question isn't about how things should or should not be and the publishing and notification of all violations. I have a more specific scenario in mind:

If a HO suspects that rules aren't being enforced against another HO (preferential treatment), and the HOA management company just keeps saying "they are handling the problem" but years go by and the problem remains unresolved, I would argue that the violation records should be attainable by any member and not hidden by "personal records" exemption. That is, if it is legally determined that a violation issued by an HOA is not a personal record. I have consulted with an attorney who believes that the issuance of such a violation is not a personal record, but I wanted to raise the issue here for more perspective. Because there are really three scenarios: 1) a defiant homeowner who has been accumulating fines or 2) lax or non-existent enforcement of that covenant or 3) preferential treatment.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By RyanD5 on 09/26/2023 7:59 AM

Violations are not discussed in public HOA meetings but that doesn't make them personal records. I don't see any reason why any HOA action (other than the exceptions in the law) would be private.

What I underlined in the last post is the crux of the reason I believe the HOA can deny owners information about owners' violations.

I understand you disagree.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By RyanD5 on 09/25/2023 4:59 PM
I'm in Arizona, and https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/33/01805.htm requires HOAs to make records available for inspection with the exception of "personal records."

The HOA management company claims that they cannot divulge information pertaining to issued violations or fines. I maintain that their enforcement actions are subject to inspection by members (an enforcement/violation log). I would also maintain that the payment of fines (if any) would or could be a personal record.

The purpose of the law is for members to be able to see if the HOA is performing its duties and audit the activities of the HOA. Without this, there is no way for members to know if other members are receiving preferential treatment or if the HOA is doing its job.

Thoughts?

I don't suppose there is any legal precedence to answer the question if an HOA enforcement action is an HOA record or personal record?

In California, disciplinary matters are considered confidential unless the member authorizes otherwise, and they are handled in closed executive sessions.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By RyanD5 on 09/26/2023 4:01 PM

Posted By SheliaH on 09/26/2023 3:42 PM
I consider criminal records different from an HOA's vio,action records because everyone in the city or county is paying taxes to provide public safety. That's not tge same as an HIA, where you chose to live there and your assessments help provide services to everyone who owns a home in the community.

The criminal actions and taxes sound like a perfect parallel to HOA violations and HOA dues.

But I think the point is missed here. The question isn't about how things should or should not be and the publishing and notification of all violations. I have a more specific scenario in mind:

If a HO suspects that rules aren't being enforced against another HO (preferential treatment), and the HOA management company just keeps saying "they are handling the problem" but years go by and the problem remains unresolved, I would argue that the violation records should be attainable by any member and not hidden by "personal records" exemption. That is, if it is legally determined that a violation issued by an HOA is not a personal record. I have consulted with an attorney who believes that the issuance of such a violation is not a personal record, but I wanted to raise the issue here for more perspective. Because there are really three scenarios: 1) a defiant homeowner who has been accumulating fines or 2) lax or non-existent enforcement of that covenant or 3) preferential treatment.

In California, if a homeowner has a problem with another homeowner regarding violations, the board is required to investigate. If the board fails to enforce, it loses the power to enforce.

TerriS6 (California)
Posts: 3,284

Posted:

Also in California, the governing documents and HOA laws can be enforced by a homeowner or the association in small claims court.