“E-Mail Inspection Rights Questioned,” News-Press

“E-Mail Inspection Rights Questioned,” News-Press

Q: A member of our homeowners’ association board shared a few e-mails that were sent between board members. In these e-mails, the board members discussed association business, individual homeowners, and how they planned to handle certain decisions. Are these e-mails considered public information? What is the best way for homeowners to obtain these e-mails? (T.K., via e-mail)

A: This is a complicated and open question in the law. The answer may depend on whether the e-mails are stored in the individual directors’ personal devices, or whether the association owns a computer or has an e-mail address where association business is conducted.

In the condominium context, one arbitrator from the Division of Florida Condominiums, Timeshares, and Mobile Homes ruled in a 2008 case that e-mails existing on the personal computers of individual directors were not official records of the association. The arbitrator stated that the property of an individual director does not become the property of the association because of his or her office on the board. The arbitrator reasoned that there is no obligation for a director to turn on a personal computer with any regularity, to open or read e-mails, or decide whether to store or delete them.

In 2002, a legal opinion issued by the Department of Business and Professional Regulation reviewed whether unit owners had the right to inspect e-mail correspondence between the association board of directors and the property manager. DBPR counsel concluded that any records pertaining to the management of the association property constitute official records and must be open to inspection to unit owners.

Under the Florida Constitution, legal opinions and positions of regulatory agencies are not binding on the courts as law, nor are they entitled to deference from the courts, so these views of the law are not the law. Until the issue is adjudicated in the appellate courts, or the statutes amended to catch up with the world of technology, this remains an open question.

Q: My condominium association levied a special assessment to fund repair work to the condominium property. The project is completed and fortunately, it did not cost as much as anticipated. Now there is money from the special assessment left over. The board has stated that it intends to keep the money for future expenses. It was my understanding that the money had to be returned to the unit owners. What must be done with the funds? (G.M., via e-mail)

A: Special assessments are an area that are heavily regulated by the Florida Condominium Act. In addition to specific requirements for the adoption of special assessments, the Act also provides that the funds collected pursuant to a special assessment may only be used for the specific purpose or purposes set forth in the notice of special assessment. Additionally, the Act provides that upon the completion of the specific purpose or purposes for the special assessment, any excess funds are considered common surplus and may, at the discretion of the board of directors, either be returned to the unit owners or applied as a credit toward future assessments.

Therefore, if your association properly levied the special assessment for a specific purpose, and that purpose is now completed, the excess special assessment funds are considered common surplus and the board of directors has the discretion to either return the funds to the unit owners in their proportionate share of assessments or the funds must be applied to future assessments. As such, unit owners are guaranteed to get the benefit of the surplus special assessment funds but are not necessarily entitled to a check in the mail.

The board should consider what to do with the surplus funds at a properly noticed board meeting. Legal counsel should also be requested to review the condominium documents for the community, as I occasionally see provisions that require excess proceeds from a special assessment to be treated more strictly than set forth in the statute, for example that the excess funds be returned to the owners in all cases.

Joseph Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.