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Getting Documents From the Registered Agent of the HOA

Started by WalterM3 • 20 replies • 267 views

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WalterM3 (Georgia)
Posts: 442
Posted:
We had a special meeting to remove all six board members last October. This was successful. It was announced at that same meeting that all six had been removed by a majority vote by the members. The management company sent out the names of the new six directors voted into office by acclamation at that meeting. A few days later, we found that the mangement company and the attorney had disallowed a large number of proxies. They reinstated the previous board. Protesting this by the new Board and others got a "Go pound sand" reaction.

From our bylaws:

"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 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."

My question is -- If I request billing invoices of this attorney (or any vendor) from the management company/Registered Agent is the registered agent required to yield them to me regardless of what the attorney may want?
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By WalterM3 on 02/12/2024 7:03 AM
If I request billing invoices of this attorney (or any vendor) from the management company/Registered Agent is the registered agent required to yield them to me regardless of what the attorney may want?
-- Any HOA agent (such as the MC) tasked with keeping custody of the records is lawfully obliged to release only those records whose release the board approves. If the board says the agent should take direction from the HOA attorney, then the agent must do thusly.

-- The Georgia nonprofit corporation statute has a number of grounds that the attorney can used to justify denial of records such as this. For starters, see https://casetext.com/statute/code-of-georgia/title-14-corporations-partnerships-and-associations/chapter-3-nonprofit-corporations/article-16-records-and-reports/part-1-records/section-14-3-1602-members-right-to-copy-and-inspect-records

-- Often attorneys stupidly put information on invoices that is attorney-client privileged (or at least, so the attorneys will claim). In theory, the attorney is supposed to redact any attorney-client info and go ahead and provide the records to the owner for inspection. In practice, HOA attorneys and the HOA often drag their feet and might even force an owner to go to court.

-- The Georgia statute section on court-ordered inspection is not terrible. It could be better.

-- "Dragging feet" with regards to records inspections is one of the main ways a HOA can get away with lawful harassment of owners.
WalterM3 (Georgia)
Posts: 442
Posted:
"Any HOA agent (such as the MC) tasked with keeping custody of the records is lawfully obliged to release only those records whose release the board approves."

"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..."

All books and records it says.

I could have said but will now, that I got 2 years of attoeney billing records from the MC back in 2015. There was no trouble from them on that.

O.C.G.A. § 14-3-1602 states in part:

(c) A member is entitled to inspect and copy, at a reasonable time and reasonable location specified by the corporation, any of the following records of the corporation if the member meets the requirements of subsection (d) of this Code section and gives the corporation written notice at least five business days before the date on which the member wishes to inspect and copy:

(1) Excerpts from minutes of any meeting of the board of directors, records of any action of a committee of the board of directors while acting in place of the board of directors on behalf of the corporation, minutes of any meeting of the members, and records of action taken by the members or the board of directors without a meeting, to the extent not subject to inspection under subsection (a) of this Code section;

(2) Accounting records of the corporation; and

(3) Subject to Code Section 14-3-1605, the membership list.

(d) A member may inspect and copy the records identified in subsection (c) of this Code section only if:

(1) The member's demand is made in good faith and for a proper purpose that is reasonably relevant to the member's legitimate interest as a member;"

SO I don't know where you can say the Board can veto these requests as that would defeat the whole purpose.
SheliaH (Indiana)
Posts: 6,964
Posted:
What does the billing invoices have to do with the election? The management company works at the board's direction, so they really don't have a dog in this fight - at least they aren't supposed to. It is possible the management company worked to help this board because people may have been honked off enough to review THEIR contract to see if it should continue. However, the billing invoices won't necessarily mean that's what happened.

You need to find out why these proxies were disallowed. Some questions I'd ask:

* Who is this attorney - the association's or someone else? Who hired him or her?
* Was the attorney at the meeting and explained his/her role?
* Who counted the votes and proxy - were they homeowners or other people (where did they come from)? The election counters shouldn't have any relationship to the current board members or candidates
* When homeowners received the letter announcing the meeting with the proxy, did it explain how the proxy was supposed to be completed?
* How many proxies were disallowed and for what reason?
* Was there a sign-in sheet at this meeting? If so, why didn't anyone check it against the proxies received, so the proxies could be canceled and the homeowner could cast the vote personally?

Send another letter to the management company AND the attorney requesting an explanation. You and your neighbors will then have to decide if you want to petition for another special meeting and do this again - this time, think this stuff through and plan because you don't want someone to go to court and have the results tossed because people didn't follow instructions or there's a chance of collusion by the management company. Pass the hat if necessary to hire your own attorney to guide you.

In my community, the proxies used in our annual meeting state they must be completed by the owner listed on the owner record. He or she must print his/her name, date, and sign it in ink (blue or black, no date or signature stamps allowed), and return the original. If the homeowner decides to attend the meeting after all, his/her proxy is canceled and he/she is allowed to vote as usual. If a house has several owners, they must decide among themselves who will complete the proxy or attend the meeting to cast the vote.

This is why I'm not a fan of using proxies for special meetings - when you're talking about something as serious as a recall, you need to make the time to show up and listen to what's going on, and cast your own vote. I realize some people have valid reasons they can't attend, in which case THEY need to be careful about who they appoint and read the damned thing before signing it so they understand what they're directing the person to do. Keeping a copy for your records might also be useful in case someone tries craziness like forging signatures or accidentally on purpose causing the envelopes to go missing.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By WalterM3 on 02/12/2024 7:39 AM
I don't know where you can say the Board can veto these requests as that would defeat the whole purpose.
I did not say this.

I do say the following: A board can deny records anytime it wants, in good faith or bad faith. The question is whether the denial is lawful (meaning in violation of the bylaws or state statute).
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By WalterM3 on 02/12/2024 7:03 AM

My question is -- If I request billing invoices of this attorney (or any vendor) from the management company/Registered Agent is the registered agent required to yield them to me regardless of what the attorney may want?

Although requirements vary by State, one must first understand what a registered agent is.

The registered agent is simply an individual identified by the corporation to receive service of process, legal documents and other official State communications.

The agent has an obligation to forward the mail to the board.

The agent has no other obligations.

What is a registered agent for an LLC or corporation?

What Is a Registered Agent?

Can I be my own Registered Agent in GA?
WalterM3 (Georgia)
Posts: 442
Posted:


You need to find out why these proxies were disallowed. Some questions I'd ask:

* Who is this attorney - the association's or someone else? Who hired him or her?

That's a mystery. He doesn't seem to have any HOA expertise.

* Was the attorney at the meeting and explained his/her role?

He ran the meeting.

* Who counted the votes and proxy - were they homeowners or other people (where did they come from)? The election counters shouldn't have any relationship to the current board members or candidates

At least one of the counters was a friend of a Board member we wanted to replace. Not really an issue as the attorney said all six had garnered enough votes to be removed.

* When homeowners received the letter announcing the meeting with the proxy, did it explain how the proxy was supposed to be completed?

Just a space for a name as I recall.

* How many proxies were disallowed and for what reason?

Enough proxies were disallowed to have the total "remove" vote for five of the six Board members to fall to less than 50%. No examination by the members who thought they had been fairly elected was allowed to my knowledge. Some reasons I heard was if someone signed "Bob" instead of "Robert" or the spouse signed but was not on the mortgage. Some people I am told protested but were told to "go pound sand."

* Was there a sign-in sheet at this meeting? If so, why didn't anyone check it against the proxies received, so the proxies could be canceled and the homeowner could cast the vote personally?

There was a sign in sheet; the proxies were checked in the moment as I understand. It was the next day or later when bunches were disallowed and no examination allowed or explanation was given; that is my understanding.

Some impropriety with the HOA funds is suspected. At least by me. The old Board seems determined to not allow any inspection of books and records. That is all in flux right now.

Again, the MC posted a congratulations to the new Board members after 3 days but soon walked that back and took the side of some pretty creepy people who we thought we had removed.
SheliaH (Indiana)
Posts: 6,964
Posted:
It may have been better for the association attorney to run the meeting – or at least find someone who didn’t have a connection with the property manager or the association board. You said he didn’t seem to have any HOA experience, which doesn’t mean anything – why not Google him and find out about him, or at least call the bar association to see what he specializes in. Then you can ask what prompted this guy to be hired and who made that decision.

You also said one of the counters was a friend of a board member – he or she could be objective, but to ensure fairness, I still say none of the counters should have had any relationship with the board or candidates. Perception can be as damaging as reality.

It would be interesting to see a copy of the letter and the proxy used – a space for a name isn’t enough. Now you understand why it’s better to either google proxy samples or have an attorney review it to make sure the wording is correct. Unfortunately, some people still won't read (that's how folks get ripped off) so you may need to add a sample proxy so they can follow along.

You say the proxies were checked against the sign-in sheet “as I understand” – were you at this meeting (if not, don't make that mistake again - make time to attend)? If so, what happened when you arrived and completed the sign-in sheet – did anyone ask if you’d submitted a proxy and then looked for it so it could be canceled? Did the sign-in sheet have a printed list of owners so you could find your name and sign next to it?

That’s what we do for our board elections and the address of the owner is also written. If there’s more than one owner and owner 1 signs, owner 2’s name will be crossed out because there’s only one vote per unit. I wonder if some of your proxies were disallowed because both owners signed.

You also said “bunches” of proxies were disallowed “as you understand it.” That’s not a complete answer – ask for numbers and reasons, as in “eight proxies were disallowed because the person signing the form wasn’t listed as an owner in the association records”

If you haven’t already done so, talk to your neighbors to see what your next steps should be. Someone had to spearhead this special meeting for the recall – why not talk to him or her about the current state of affairs and join in any effort to call another meeting? Read your documents again to make sure you understand what’s required for another special meeting. Y’all probably should have had some sort of checklist where these things could have been reviewed to make sure all appropriate steps were taken.

I’d also suggest reading old conversations on this website about recall votes and meetings to get some tips on what to do and avoid. If you have questions, bring them to THIS conversation so you’ll get updated information.
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
WalterM3 (Georgia)
Posts: 442
Posted:
Shelia,

I was at the meeting. I was very invested in getting rid of a group of directors who are mean and unqualified. Most of the info I have of post meeting issues I got form one of the "elected/oops not elected" Board members. There is a group of home owners working now to see what we can do to get rid of these bad Board members who are dug in like ticks. You have some good ideas thanks.
WalterM3 (Georgia)
Posts: 442
Posted:
Tim,

I think you've answered my question. The Registered Agent wouldn't feel any special pressure to make sure my requests for documents from the HOA Board were honored.

Thanks

Walt
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By WalterM3 on 02/12/2024 10:35 AM
Shelia,

I was at the meeting. I was very invested in getting rid of a group of directors who are mean and unqualified. Most of the info I have of post meeting issues I got form one of the "elected/oops not elected" Board members. There is a group of home owners working now to see what we can do to get rid of these bad Board members who are dug in like ticks. You have some good ideas thanks.

Walter

I have said this before and I say it again. Recalls can be very tricky and are easy to legally fight. Best is to work toward replacing people at the Annual Election.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Unqualified how? Not homeowners? That is only requirement to be in a HOA.
Former HOA President
WalterM3 (Georgia)
Posts: 442
Posted:
"Unqualified how? Not homeowners? That is only requirement to be in a HOA."

Being clueless about to operate a corporation, even one as small as an HOA.
WalterM3 (Georgia)
Posts: 442
Posted:
"Unqualified how? Not homeowners? That is only requirement to be in a HOA."

Being clueless about to operate a corporation, even one as small as an HOA.
WalterM3 (Georgia)
Posts: 442
Posted:
"Unqualified how? Not homeowners? That is only requirement to be in a HOA."

Being clueless about to operate a corporation, even one as small as an HOA.
WalterM3 (Georgia)
Posts: 442
Posted:
"Unqualified how? Not homeowners? That is only requirement to be in a HOA."

Being clueless about to operate a corporation, even one as small as an HOA.
WalterM3 (Georgia)
Posts: 442
Posted:
"Unqualified how? Not homeowners? That is only requirement to be in a HOA."

Being clueless about to operate a corporation, even one as small as an HOA.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By WalterM3 on 02/12/2024 10:40 AM
Tim,

I think you've answered my question. The Registered Agent wouldn't feel any special pressure to make sure my requests for documents from the HOA Board were honored.

You can send a registered/certified letter to the board through the registered agent asking for the records.
This would provide you with excellent documentation if the issue had to go to court.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
I know of no one that knows how to run a HOA. Especially if the ONLY qualification is to be a homeowner. Think you are putting waaaay too much expectations on your neighbors.

The Articles of Incorporation and CC&R's are PUBLIC information. I don't know why anyone needs to go to their MC or HOA to view or get a copy. The ONLY document the HOA may have is By-laws. Which they can charge to make copies to provide. Plus your just allowed to VIEW.

Again you are allowed to VIEW these documents. Copies are to be PAID for. Plus you can find this information about the lawyer billing by getting a copy of the expenditures. A copy of collections is a bit more complicated. You may be able to see a copy of your account. However, it's not wrong to let one get a copy of the collection reports even though they have absolute no power to collect outside of the board.

You do know one of the legal expenses your going to see? Is the one where they consulted the attorney to respond to you. Is that going to be a problem to see that the lawyer was consulted and paid for by the HOA funds to respond to your complaints and of others? The HOA lawyer is NOT your lawyer. It is lawyer of the HOA. You may not have a right to see those transactions outside of what is on the expenditures report.
Former HOA President
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By MelissaP1 on 02/12/2024 3:18 PM
I know of no one that knows how to run a HOA.

I would say that there are many on this forum that know how.

Granted, it had a learning curve and the learning doesn't (and shouldn't) really end.

However, I would say that there are many on this forum that know how an HOA/COA should run.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
My point was Tim it is not a natural thing that anyone knows. It took me 2 years to get things operational in my HOA. That was after lots of reading docs, experience, lessons learned, and help from those on this forum.

I am not bout to assign worlds of knowledge onto a board of people whom just had to volunteer and be a homeowner. I can not do that much to myself.

My guy feel and I am sure following responses from Walter we will find out it my not be the board who does not know what a HOA is or does ...
Former HOA President

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