WITHIN 10 WORKING DAYS MEANS:

WITHIN 10 WORKING DAYS!

An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc.

Published July 12, 2011

 

I agree that many provisions in the community association statutes are vague, open to all kinds of interpretations. But when it comes to Record Requests and Inspection of Records, I think the legislature did a great job, explaining in detail what's right and what's wrong, what's public record and what's not and within what time period such a request has to be fulfilled.

 

And despite the clear language in all different statutes, the fight over record requests is most likely the Number One on the list of association battles!

 

It is just amazing how boards, management companies and even attorneys feel that they can create rules that contradict the requirement of these statutes. The statutes supersede any "rule-making" -- no matter if board members or managers dislike these statutes.

  

The language in all applicable statutes is nearly all the same. FS 718.111(12)(c) and FS 720.303(5) require ACCESS to the requested records within 10 working days after receipt of  the written request. FS 719.104(2)(b) is a little more tricky since it requires access within 5 working days after receipt of written request, but the wording says that it takes 10 working days before it creates a rebuttable presumption that the association willfully failed to comply with this paragraph. But no matter what, they all agree on ACCESS at the latest within TEN (10) WORKING DAYS.

 

Let's not get into the rules some management companies invent to charge outrageous fees to owners requesting to inspect records. Already discussed ad nauseam. [See: COST OF INSPECTING RECORDS? ZERO!]

  

Let's just take a look at the rules created by board members, community association managers and attorneys, trying to make record inspection by owners more difficult and complicated.

  

Here is a splendid example from the Village of Sandalwood Lakes South Homeowners Association, Inc. in West Palm Beach, carrying the fancy headline: A RESOLUTION OF THE BOARD OF DIRECTORS ESTABLISHING RULES GOVERNING RECORD REQUESTS.

  

So far -- not so good! Because when an owner requested in writing to inspect records -- receipt acknowledged by association for June 23, 2011 -- CAM Richard Ouellette, LCAM, waited until July 6, 2011 to respond with an "EDUCATING LETTER" advising her of all the rules and other excuses why she still hadn't gotten access to the requested records. He mailed the letter eight (8) working days after receiving the request letter, knowing full well that the certified letter wouldn't be received by the homeowner within the ten working days -- knowing that he wouldn't give the homeowner timely  access to the records, thereby clearly violating Florida statutes. In his letter he offered July 13 -- exactly 13 working days after receiving the written request -- as an option.

  

And, as you can imagine, the response of the homeowner was accordingly, as expressed in a LETTER TO THE BOARD OF DIRECTORS. I can well understand the homeowner being upset. Records should be like open books for the owners who pay their dues -- and therefore pay the manager. 

  

I always hear board members and managers complaining that obviously the owners don't trust them. My question in response: Why would somebody make it difficult -- even going so far as violating Florida statutes -- for owners to inspect the records, if he/she has nothing to hide?

 

Or I hear: It's just a few days more, why is it wrong? The very obvious answer: It's the law and "10 working days" means 10 working days.

  

Even if the Florida Statutes FS 720.303(5)(c) allow associations to create all kinds of rules and restrictions, the required ACCESS within ten (10) working days cannot be effected by any of these rules. Why is it so difficult to understand?

  

Let's make it very clear: THE STATUTES REQUIRE ACCESS WITHIN 10 DAYS, not just a response within 10 days trying to explain certain rules and excuses. In my opinion writing such letters is just more proof of the incompetence of the person writing and signing the letter -- no matter the letter salad behind the name of the signee.

  

AGAIN -- especially for the folks who have a hard time reading and understanding the English language: The statutes require A-C-C-E-S-S T-O T-H-E R-E-C-O-R-D-S within ten working days, not access to letters filled with rules -- often contradicting just these statutes -- and other excuses trying to circumvent the wording of the statutes. What's so difficult to understand?


FS 718.111(12)(c) The official records of the association are open to inspection by any association member or the authorized representative of such member at all reasonable times. The right to inspect the records includes the right to make or obtain copies, at the reasonable expense, if any, of the member. The association may adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying. The failure of an association to provide the records within 10 working days after receipt of a written request creates a rebuttable presumption that the association willfully failed to comply with this paragraph.

 

FS 719.104(2)(b)  The official records of the association shall be maintained within the state. The records of the association shall be made available to a unit owner within 5 working days after receipt of written request by the board or its designee. This paragraph may be complied with by having a copy of the official records available for inspection or copying on the cooperative property.

(c)  The official records of the association shall be open to inspection by any association member or the authorized representative of such member at all reasonable times. Failure to permit inspection of the association records as provided herein entitles any person prevailing in an enforcement action to recover reasonable attorney's fees from the person in control of the records who, directly or indirectly, knowingly denies access to the records for inspection. The right to inspect the records includes the right to make or obtain copies, at the reasonable expense, if any, of the association member. The association may adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying. The failure of an association to provide the records within 10 working days after receipt of a written request creates a rebuttable presumption that the association willfully failed to comply with this paragraph.

 

FS 720.303(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. If the association has a photocopy machine available where the records are maintained, it must provide parcel owners with copies on request during the inspection if the entire request is limited to no more than 25 pages.
(a) The failure of an association to provide access to the records within 10 business days after receipt of a written request submitted by certified mail, return receipt requested, creates a rebuttable presumption that the association willfully failed to comply with this subsection.

 

FS 720.303(5)(c) The association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but may not require a parcel owner to demonstrate any proper purpose for the inspection, state any reason for the inspection, or limit a parcel owner’s right to inspect records to less than one 8-hour business day per month. The association may impose fees to cover the costs of providing copies of the official records, including, without limitation, the costs of copying. The association may charge up to 50 cents per page for copies made on the association’s photocopier. If the association does not have a photocopy machine available where the records are kept, or if the records requested to be copied exceed 25 pages in length, the association may have copies made by an outside vendor or association management company personnel and may charge the actual cost of copying, including any reasonable costs involving personnel fees and charges at an hourly rate for vendor or employee time to cover administrative costs to the vendor or association. The association shall maintain an adequate number of copies of the recorded governing documents, to ensure their availability to members and prospective members.

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