“Common Association Official Records Pitfalls” – FCAP Managers Report
Over the last five (5) years the legislature has put much more emphasis on owner access to official records and penalties against associations and board members for failure to comply with same. This has been in reaction to a few cases, most notably in Miami-Dade County, where violations of current official record requirements facilitated fraud and abuse by some board members.
This has led to numerous changes in the statute provisions regarding official records of all associations. More stringent record keeping requirements, documentation, and even criminal penalties have been enacted over this period of time. Failure to respond properly to an official record request can result in a monetary penalty of $500; a fine and required class taking from the Division of Condominiums; payment of attorney’s fees and costs for owners who prevail in a lawsuit regarding same; and even criminal liability in some cases. It is therefore crucial that all proper procedures are followed when responding to a records request, and important to always contact your association attorney in regard to same.
An association can pass reasonable rules and regulations regarding access to official records, and such rules can make compliance easier. If your association does not have rules and regulations regarding record inspection and written inquiries, you should get with your association attorney to promulgate such rules. Do not try to do this on your own or with the association manager – the vast majority of such self-drafted rules are in violation of the statutes.
The board should be consistent in its application of adopted rules regarding record inspections. Records can be inspected onsite, on an association website, or even offsite. Requested records can be, but are not required to be, emailed to owners. An association should not require the owner who submits weekly record requests to inspect offsite while emailing records in response to other owners. Consistency is the key.
Some of the most recent changes to record inspection procedures are the requirement for the association to provide a checklist of records made available for inspection, as well as criminal penalties for some violations. Consult with your association attorney regarding the checklist requirements. Concerning criminal penalties, failure to provide access to official records as required, in the furtherance of another crime, can now result in criminal penalties. In other words, trying to cover up wrongdoing by refusing to allow an inspection or hiding documents can lead to criminal charges.
The statutory deadline to provide access to official records is firm. Ten working days, or two weeks, is the deadline to make the records available; there are no extenuating circumstances, no exceptions, no reason not to comply with this deadline, unless specifically agreed to by the requesting party. Don’t let your association get caught in this easy to avoid trap.
Also note a new provision that requires the official records to be maintained in an organized manner. No more dark, dingy, musty rooms filled haphazardly with boxes.
For all of the above reasons, it is imperative the association have clear, written rules or policies regarding official record inspections, and consult with the Association attorney when such requests come in.
While these new requirements may seem daunting, it’s essential to maintain perspective. By focusing on transparency, implementing sound policies, and seeking professional guidance, you can effectively mitigate risks and ensure your association’s continued success. Have clear, written rules or policies for official records inspections.
To read the original FCAP article, please click here.
Howard J. Perl is a member of Becker’s Community Association practice and has been involved in all aspects of community association law, including transactional, collections, mediation, arbitration, construction defects and litigation. He is Florida Bar Board Certified in Condominium & Planned Development Law and is certified by the State of Florida as a facilitator for continuing education credit courses for Community Association Managers.
