My Blog vs The HOA... Boggles the Mind - Part 2

Hi Everyone,
I was the one who posted the blog question a few weeks ago, and opened quite a discussion. If you were not around for the fun, you can see it here: http://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/85842/view/topic/Default.aspx

There have been some follow up events that have occurred in the interim. Perhaps, I will post them at some later date, but there is something else which I would like your opinions on.

Keep in mind that the Board is still controlled by the Sponsor since the community is not finished yet (this may or may not have and bearing).

I had decided to shut down the original blog which had the name of the community as part of its title (an attorney for the sponsor wrote me that the name was trademarked) and open a new blog which has a very generic title that should not offend anyone, and I have put in a disclaimer that the Board is not sanctioned by any HOA or any Sponsor or any developer.

One of the first posts on the new blog is a report that my wife had just requested a copy of the last two Board minutes at the Concierge desk, and was told that "Hardly anyone ever asks for them" and they were not readily available.

The next day I received an email informing me that if I wanted to see the minutes, I had to go to the clubhouse, ask for the Property Manager, and I would be able to "VIEW" the minutes. No copies would be made. And when I was finished viewing them, I had to return them. I could not leave the premises with them. My response was, "You're kidding, right?".

I posted a question to the homeowners on the blog: "Is the purpose of putting out minutes just to say you are putting out minutes or is it to inform the residents of the activities of the Board which is supposed to represent them?"

The Property Manager sends out a dozen emails a week to everyone in the community informing them of meetings of this club and that club and parties and trips and movies and dinners, but the minutes of Board meeting can only be seen if you show up at the clubhouse and sit there and read them on premises!?!

Aside from wanting as few people as possible to read the minutes, what could possibly be the rationale behind that?
Steve

The topic of records requests has been discussed in the last few months.

Your HOA may be required by law to make regular records available, and that may also be specified in your governing documents. That's the case in Texas and in my HOA. Of course, you have to submit the request in writing, and you should send it by certified letter. Check your state law and/or ask an attorney. This may be different, if the developer has not turned over control.

The Corporation is allowed to charge for extracting the records and making copies. Some have posted that 75 cents (or did I see $1.50?) per page is reasonable -- the time and effort could be considered a significant factor. Minutes from the last two monthly Board meetings should cost next to nothing and should be simple to find and copy.

I requested bank statements, decisions (not limited to meetings and minutes) and insurance policies from my BoD. They never refused or explained, and they did not try to charge me an arm in a leg. But month after month and then week after week, they stonewalled. The Secretary got into a routine where she would call me on Thursday and say that she had some of it and would get back to me that afternoon or the next morning. Then I didn't hear from her until the following Thursday, when she went through the routine again. By that point, I was emailing a reiteration of the records request every Friday at 6:00 PM.

The point is, if they are obligated to do something but choose to ignore the law, and if that law has no teeth, then you can't do much about it unless you want to pay the cost of suing them. Just keep sending the requests, in case something more important happens later and you want to show the history of misconduct.

Your state laws may be different, and if your declarant control period has not ended and/or your HOA is not a corporation, then they may not apply.

I would normally suggest you try to find someone reasonable on your Board and sit down and talk with them, but I think you've posted that your Board is effectively the developer. Don't waste your time, if they are not required to keep or provide these minutes.

Unless your state has a law which covers the right to view and receive copies of HOA documents, we suggest your Association create a Rule and Regulation (policies & procedures) like the following:

The records of the Association shall be reasonably available for inspection and copying during
normal working hours to a Unit Owner, or their appointed representative, in response to their good
faith request for a proper Association purpose. The Association may withhold records such as those
protected by attorney-client privilege and information which might be used for soliciting purposes.
No owner shall disclose Association information which can be used for soliciting purposes. Privacy
concerns, however, are narrowly construed. For example, despite what might be embarrassing to a
homeowner, delinquent account information can not be withheld from an Owner if the request is
made in good faith and for a proper purpose. The Owner shall submit a written request to the Registered Agent providing a) Name, b) Address, c) Date, d) purpose, e) Specific records for which copies are requested, f) Specific records for which only onsite review under supervision are requested. Upon receipt of a request the Agent shall
contact the Owner to schedule a meeting within five business days and advise on the cost involved.

The Association shall disclose certain information to all Unit Owners annually and to an Owner
when selling of a Unit. Disclosure of information may be accomplished by various means: (1)
maintaining a binder at the Registered Agent’s office; (2) sending by E-mail upon request; (3)
posting on an internet web page with accompanying notice of the web address via first-class mail or
E-mail; (4) first-class mail; and (5) personal delivery.
Information which shall be disclosed includes:
a) The name of the Association; the name of the Association’s designated Agent and
Management Company, if any; physical address and phone number for both the Association and the
designated Agent and Management Company, if any; and if the Association address, designated
Agent, or Management Company changes then Owners shall be advised within 90 days;
b) The Declaration and amendments to the Declaration with the initial recorded date, and
reception number or book and page;
c) The Articles of Incorporation and amendments thereto; current Bylaws; and all current
Rules and Regulations;
d) The date the fiscal year commences; operating and reserve budgets for the current fiscal
year; most recent Annual financial statements including a Balance Sheet and Income Statement; and
report on results of any financial review or audit preceding the current annual disclosure;
e) The current regular assessment and special assessments, if any;
f) A list of all Association Insurance policies, including Property, General Liability,
Directors and Officers Liability, and Fidelity. Such list shall include the Company and Agent’s
names, Policy limits, deductibles, additional named insureds, and expiration dates;
g) Minutes of Member and Board meetings for the last year

Don and Roger the OP is still under Declarant control and as we all know they can pretty much make it up as they go as long as they don't violate the law. I'm not excusing this by any means but until the owners take over unless Steve wants to get involved in expensive litigation he is at their mercy. Steve if you can't find a requirement to let you copy the minutes in NY condo law, look under the different corporate codes.

I continue to be troubled by the many reports of HOA Boards that fail to comply with state laws and their own governing obligations, and I am constantly reminded a major cause is these laws have no teeth in many states. These Boards can disregard their duties with impunity, because these laws cannot be enforced unless the average homeowner is willing to undertake an absurd level of expense and risk by suing his/her own HOA, pitting own resources against those of all of their neighbors (including themself, since the homeowner must bear the cost of both sides), regardless of what many neighbors think about their Board's misconduct.

If and when I can get on my HOA's Board, I want to amend our Bylaws to provide for swift and easy removal of Directors and Officers who demonstrate a consistent pattern of abuse. Obviously, I also intend to do my job fairly and responsibly so as not be chastised under my own initiative.

Of course, I also agree with those who would say that failure of the "the average homeowner" to act within the HOA electoral process is also a problem, as is general apathy towards problems and to those who are willing to act, as well as complainers who won't take action. But it's difficult to distinguish between these two situations under common governance arrangements for HOA's. I suggest a remedy to this problem is the addition of checks and balances to allow a small group of homeowners to act effectively in certain situations, rather than granting the Board the full authority of an apathetic HOA Membership and requiring action on the part of all or most of that Membership to deal with a rogue Board.

I was not offered the chance to get copies made at any price. The rule was... come to the clubhouse, ask for the minutes, sit there, read them, and leave.

I posted a comment on my blog to the snowbirds who are in Florida for 1/2 the year asking if they feel it right that they do not have access to any minutes until they get home. My opinion... absolutely ridiculous.

Our condo is in New York State. I have no clue what the law is that regulated whether a Board has to make minutes available to the homeowners or not (I would love to know where that information can be found).

But, in a 55+ community, where, probably, 1/2 or more of the residents are in Florida for 4 to 6 months during the year, it seems that making minutes available ONLY to residents who are willing to go to the clubhouse, request to see them, sit there and read them, and then leave, is not in the best interests of ANYONE (except, perhaps, the Board itself).
Steve

Steve,

Let's be honest. They are running you through the hoops because they didn't like what you were doing. That said, as a member you have a right to review the documents at a reasonable place and time. The Board is allowing you that right. They are just making you go through the motions of it.

This is very, VERY important. As a member you have a right to review those documents. You DO NOT have the right to publish those documents on your web site. That would be the Boards option.

Tim

This thread is becoming very confusing. If, as Michele and I posted, the association is still under developer control, there is serious question of whether any member has the right to review the developers Books, records or whatever.

Steve, clarify these points if you will. Also tell us if you have any owners appointed to the developers board, how many and are they functional and can they effect change by vote of the Board.

Normally, the developer holds control of the Board and is never in the minority. If you are requesting documents under FOIA I do believe you can publish anything you receive in discovery, unless of course, there is personal information referenced. Forcing a private company (Developer) to open books would be a hard fight, and frankly, if the developer is still in control, why bother unless your are charging criminal intent, good luck on that.

If all this is reality, I still suggest you find support among your neighbors before you cross swords with the developer. I doubt a developer, if he disagrees with you, will pay you much mind, He might listen to 15 people all chasing the same rabbit.

Steve,
You do understand the developer out votes you. We have seen posts here where the developer maintains control for years, what is your time table?
No one thinks you are trying to create havoc, but if you want to make constructive changes you can not do it lone eagle, unless you take the developer to court. I think all the postings here have applications, I am not convinced they apply to you, at this point in time.

Not true, and, quite frankly, tinfoil-hat territory.

There may be very little in the minutes at all.

The develop just simply may not like you.

The board, heavily leaning toward the developer's control, may, as Tim said, simply want to make you go through the hoops.

I know in our own development we couldn't receive "minutes" even if we had pushed for them legally.

The developer simply didn't have any.

The meetings were just t-crossing and i-dotting so they could file their appropriate reports with the state.

Sometimes there really is no "there" there.