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cirruspilot · Feb 1, 2009, 12:15 PM

I'm a member in a HOA located in Florida. Statutes give any member the right to inspect the Assoc. records. Our documents give us the same rights. Statutes say there is a $50.00 per day penalty if not complied with within 10 business days.
I asked in writing to see many records. In 9 days the board responded that their attorney opined that they could charge a "reasonable" fee for this service. They asked $125.00 for the management firm's time to gather about 10% of what was asked for. They had this 10% of documents available if I had a check. I refused to pay the $125.00 and was prevented access to the records.
There is NOTHING in the Florida statutes regarding the ability to charge any member except for copying services. I think that is a chargeable offense and I also want the penalties that are accruing.
I also would like to take legal action against the association president AND the board for violations of the state statutes.
Do you think there is a possibility of winning and how can I find out if anyone else has succeeded in a similar action?

ScottGem · Feb 1, 2009, 12:21 PM

You need an attorney. I don't think $125 is unreasonable, dependng on the nature of the records.

An attorney will be able to research precedents and let you know how good a case you have.

I'm curious as to what the dispute you have with the HOA is

JudyKayTee · Feb 1, 2009, 12:29 PM

I am also curious as to the nature of the dispute.

I don't find this to be unreasonable, particularly if the HOA doesn't feel there is any reason to supply the documents or if you make these requests frequently.

If you do sue them, what are your damages? What are you suing for? If they are in viiolation of what you believe to be State Law, you still have to be damaged in order to sue and collect.

cirruspilot · Feb 1, 2009, 12:31 PM

Scott..
The issue is the right to charge ANYTHING to access the records.
We are in the middle of a legal battle with a neighboring community. I asked the board how much was spent on legal fees for the last six months? No answer in 38 days. So... I asked to see the records for the last seven years as is my right. I say if the management company feels they have a right to charge any fees it should be to the HOA board. Otherwise we will always be caught up in what is reasonable or not.

cirruspilot · Feb 1, 2009, 12:41 PM

JudyTayKee
Thanks for your response. It doesn't matter what or how the board feels. This isn't about feelings. It is about the Florida laws. ANY member has the reght to inspect the records per Florida State Statutes. The board CANNOT ask any questions as to the reasons for the inspections. These records must be available during business hours. The can charge a reasonable fee ONLY for copying.
Regards...
This is the first time I have asked to see the records although the statutes do not talk about frequency etc.
My opinion is that they DO NOT want an examination to occur and will put any obstacles available in the way.

JudyKayTee · Feb 1, 2009, 02:02 PM

Originally Posted by cirruspilot

JudyTayKee
Thanks for your response. It doesn't matter what or how the board feels. This isn't about feelings. It is about the Florida laws. ANY member has the reght to inspect the records per Florida State Statutes. The board CANNOT ask any questions as to the reasons for the inspections. These records must be available during business hours. The can charge a reasonable fee ONLY for copying.
Regards...
This is the first time I have asked to see the records although the statutes do not talk about frequency etc.
My opinion is that they DO NOT want an examination to occur and will put any obstacles available in the way.

I didn't say it wasn't about the law. I was speculating what the HOA might be thinking or their quasi-legal reasoning

I cannot locate this Florida Statute. I find it in Virginia, but not Florida. Would you please post it?

cirruspilot · Feb 1, 2009, 09:12 PM

Following is the applicable Florida statues. Especially section (c)
I appreciate your opinion.

20.303 Association powers and duties; meetings of board; official records; budgets; financial reporting.--
(5) INSPECTION AND COPYING OF RECORDS.--The official records shall be maintained within the state and must be open to inspection and available for photocopying by members or their authorized agents at reasonable times and places within 10 business days after receipt of a written request for access. This subsection may be complied with by having a copy of the official records available for inspection or copying in the community.

(a) The failure of an association to provide access to the records within 10 business days after receipt of a written request creates a rebuttable presumption that the association willfully failed to comply with this subsection.

(b) 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.

(c) The association may adopt reasonable written rules governing the frequency, time, location, notice, and manner of inspections, and may impose fees to cover the costs of providing copies of the official records, including, without limitation, the costs of copying. The association shall maintain an adequate number of copies of the recorded governing documents, to ensure their availability to members and prospective members, and may charge only its actual costs for reproducing and furnishing these documents to those persons who are entitled to receive them.

excon · Feb 2, 2009, 04:35 AM

Hello c:

Isn't Florida Bush country?? Maybe THAT'S why... If given an even choice, Bush would make a bathroom cleaning report secret. Looks like your HOA is doing the same thing...

Unless, of course, they really DO have something to hide. If that's what you think (and you do), pay the little bit of money they want you to pay, find out how they (the board, the management company, and the lawyers), are SCREWING you over, as you suspect they are, and sue them - BIGTIME.

You can even sue for the fee you illegally had to pay.

excon

cirruspilot · Feb 2, 2009, 06:22 AM

I'm not giving the "bastards" a nickel. Somehow I'm going to find out if anyone has ever sued and won a similar case. I'd like to sue both the Association and the Assoc. President. I'm saving all the correspondence. My hope is that it would never go to trial and be settled by their insurance company.
Regards...

excon · Feb 2, 2009, 06:40 AM

Hello again, c:

I understand your principle. However, you need to choose your battles well.

IF they ARE doing anything untoward, THAT is the case you want to fight. In my view, you'll be wasting precious LEGAL resources by suing to GET the documents, that (1) you could get if you paid their piddly ransom, and (2) that you MIGHT want to sue over later after you've seen them...

I think you weaken the larger issue by seeking compensation for a piddly amount of money. It makes YOU look petty, and it gives your suit the air of retaliation...

excon

ScottGem · Feb 2, 2009, 08:55 AM

Originally Posted by cirruspilot

(c) The association may adopt reasonable written rules governing the frequency, time, location, notice, and manner of inspections, and may impose fees to cover the costs of providing copies of the official records, including, without limitation, the costs of copying. The association shall maintain an adequate number of copies of the recorded governing documents, to ensure their availability to members and prospective members, and may charge only its actual costs for reproducing and furnishing these documents to those persons who are entitled to receive them.

I'm sorry, but your interpretation of this clause is inaccurate. The way I read this ANY costs for making the records available for inspection are allowed. Lets say they have a clerk earning $12.50/hr and it takes that clerk 10 hours to get all the documents (you asked for 7 years worth) together, then the $125 is a reasoanble and legal charge.

I agree with excon that you are fighting the wrong battles. And let me point this out. If you were to win and force the HOA to pay punitive fees to you, where do you think this money will come from? Its going to come from association dues so, in effect, its coming out of your pocket.

LisaB4657 · Feb 2, 2009, 09:40 AM

I have to disagree with Scott on this one. There should be no charge for a member to have access to look at the documents. The association is required to have adequate copies of those documents on hand at no charge to the member. IMO the association can assess a reasonable charge only if the member has requested a copy of the document for their personal use. If the member wants to walk into the association's office and look at the documents then there is no charge.

cirruspilot · Feb 2, 2009, 10:32 AM

Lisa: I agree with you. However the management company(through an association letter) tells me that they will charge mainly because they have put the records "in storage". I responded that they can charge however much they like... only NOT TO ME! "It ain't my problem" that they choose to store December's records or any records in a remote place and they want a fee from me to "gather" them. In my opinion this kind of imposed fee structure is designed to deter the member from viewing these records.
I wonder if there are any similar cases that went to court that I could view? I don't know what kind of damages could be received but they are sure succeeding on increasing my blood pressure.
Regards, Don

LisaB4657 · Feb 2, 2009, 10:34 AM

There should be a state agency that approves and licenses the HOA before any of the homes can be sold. (At least it works that way in NJ.) If that's the case in FL then you can call them and ask if the management company is allowed to do this and if you have any remedies.

ScottGem · Feb 2, 2009, 11:10 AM

I always hesitate to disagree with Lisa, but I have to stand my ground on this one. I think the Florida statute is clear. Records, especially older ones, do not need to be maintained on site. They just have to be maintained within the state. Remember the OP has asked for SEVEN years worth of records. If these records are stored off site, then the HOA will incur costs in retrieving those records. The statute cited by the OP allows the HOA to pass those costs onto the requestor.

cirruspilot · Feb 2, 2009, 02:15 PM

Scott;
I strongly DISAGREE. I am not and never asked for copies. I asked to examine the records! Where in the stated statute does it say ANYTHING about passing along or just charging ANYTHING except for copying?
Florida statues. Especially section (c)
I appreciate your opinion.

20.303 Association powers and duties; meetings of board; official records; budgets; financial reporting.--
(5) INSPECTION AND COPYING OF RECORDS.--The official records shall be maintained within the state and must be open to inspection and available for photocopying by members or their authorized agents at reasonable times and places within 10 business days after receipt of a written request for access. This subsection may be complied with by having a copy of the official records available for inspection or copying in the community.

(a) The failure of an association to provide access to the records within 10 business days after receipt of a written request creates a rebuttable presumption that the association willfully failed to comply with this subsection.

(b) 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.

(c) The association may adopt reasonable written rules governing the frequency, time, location, notice, and manner of inspections, and may impose fees to cover the costs of providing copies of the official records, including, without limitation, the costs of copying. The association shall maintain an adequate number of copies of the recorded governing documents, to ensure their availability to members and prospective members, and may charge only its actual costs for reproducing and furnishing these documents to those persons who are entitled to receive them.

ScottGem · Feb 2, 2009, 02:23 PM

I already answered that. You are focusing on the wrong part of the statute. I'm looking at the part that says may impose fees to cover the costs of providing copies of the official records the statute goes on to say may charge only its actual costs for reproducing and furnishing these documents. The keyword there is FURNISHING.

You can, of course disagree with me. I'm not an attorney and Lisa is, which is why I hesitate to disagree with her. But, In my opinion the statute does give the HOA flexibility. You also have the association lawyer who believes they can impose a fee.

Plus, I think you are just trying to get revenge on the HOA for not complying with your original request. In doing so, I feel you are cutting off your nose to spite your face.

cirruspilot · Feb 2, 2009, 03:06 PM

Scott:
You are looking at the section that refers to 'THE GOVERNING DOCUMENTS."
"copies of the recorded governing documents, to ensure their availability to members and prospective members, and may charge only its actual costs for reproducing and furnishing these documents to those persons who are entitled to receive them.
That does not apply to the business records.
Regards, Don

LisaB4657 · Feb 2, 2009, 03:45 PM

I just looked at the Florida statute. The term "official records" is defined in Sec. 720.303(4). It includes all of the governing documents and it just happens to include 7 years worth of financial records.

So the statute requires the HOA to maintain 7 years worth of financial records for the members to access upon 10 business days prior written notice. The business about fees is for copying those records, not for giving members access to the records on hand. So the OP should have the right to review 7 years of the HOA's financial records at no charge as long as he is willing to review them in the HOA's office.

That being said, I agree with ScottGem and excon. You're fighting the wrong battle. Send a letter to the HOA requesting your free access to the records within 10 days pursuant to Sec. 720.303 of the Florida Statutes. If they refuse to give you access, pay the fee they charge. Then go ahead with whatever other plans you have and include this fee as a separate count in whatever lawsuit you end up filing.