By Ryan Poliakoff
I live in an HOA of 74 homes with a modest budget. My question is about the inspection of official records. I think our board is ill-advised and misinformed, or simply unwilling to comply with the HOA Act, Ch. 720. Recently, one of our new owners sent a certified letter requesting inspection of several records. She was stonewalled for nearly four months, and then received incomplete information. She then asked for a penalty payment according to Ch. 720. At the most recent board meeting, which was tape recorded, the secretary stated that on the advice of their new attorney (they’ve changed firms three times in the last four years), “when there is a delay in getting requested information, it is not a fine paid to the member but instead, a fine the state would levy as a penalty if we did not provide the information.” The treasurer and secretary also stated that any future requests for official records will not be granted until $30 is paid to the association (in advance) for the first hour of our bookkeeper’s time, $25 for every hour thereafter, and 25 cents a page for any copies made. This too, according to the board, is based on the advice of the new HOA attorney. Is this a proper interpretation of the statute?
Your board has gotten some incorrect advice. First, the statute, at Section 720.303, Fla. Stat., expressly states that “a member who is denied access to official records is entitled to the actual damages or minimum damages for the association’s willful failure to comply with this subsection. The minimum damages are to be $50 per calendar day up to 10 days, the calculation to begin on the 11th business day after receipt of the written request.” The member is entitled to the damages. In the context of an HOA, the state (the Division of Condominiums) doesn’t even play a role in the process, and has no investigative power. The problem, of course, is that there is no method of enforcement other than serving a mandatory pre-suit demand for mediation and then suing the association. This owner demanded the damages, and the association refused. If the owner hires an attorney to assist in participating in mediation and preparing a lawsuit, it could cost thousands of dollars (though, if they prevail, they are entitled to recover reasonable legal fees, though that never means 100 percent). And if the owner doesn’t hire an attorney and loses (I’ve seen it happen), they would be responsible for the association’s legal fees. I have seen people forced to declare bankruptcy because they are on the losing end of a lawsuit they brought against a condominium or HOA. What you described seems like an open and shut case, but with a court, you never know.
As for the charges, the Act also states that “the association may impose fees to cover the costs of providing copies of the official records, including the costs of copying and the costs required for personnel to retrieve and copy the records if the time spent retrieving and copying the records exceeds one-half hour and if the personnel costs do not exceed $20 per hour. Personnel costs may not be charged for records requests that result in the copying of 25 or fewer pages. The association may charge up to 25 cents per page for copies made on the association’s photocopier.” So not only can the association not charge for the first half hour of time, but the maximum they can charge is $20 an hour—and they can’t charge at all if no copies are requested or needed.
I have a very hard time believing that an attorney gave the advice you described. It’s contrary to the plain language of the Act. It’s possible that the board misunderstood, or simply did not tell the truth. Or, it’s possible that the attorney informed the board, honestly, that the chances of anyone challenging their failure to provide the documents, or challenging their charges, is extremely remote, and fraught with risk.
If you were in a condominium, and the association failed to provide records, the owner could file a complaint with the Division of Condominiums, which has the jurisdiction and power to launch an investigation and apply penalties if needed. But even then, it can be an extremely long process (many months at a minimum), and I have seen situations where, even with the Division involved, condominiums, particularly those with aggressive and clever attorneys, manage to avoid turning over records forever.
Ryan D. Poliakoff
Partner of Backer Aboud Poliakoff & Foelster
Ryan D. Poliakoff is a Partner of Backer Aboud Poliakoff & Foelster and serves as general counsel to condominiums, homeowners associations, and country clubs throughout South Florida. He is the co-author of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op, and HOA Living. In addition to representing associations, he is a frequent contributor at seminars and workshops for attorneys and board members, and he has written hundreds of articles for magazines and newspapers throughout the United States. He can be reached at email@example.com. For more information about his firm, visit www.bapflaw.com.