WITHIN 10 WORKING DAYS MEANS: WITHIN 10 WORKING DAYS! |
An
Opinion By Jan Bergemann 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?
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