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ACCESS TO
OFFICIAL RECORDS
ACCESS to OFFICIAL RECORDS is
regulated by FS Chapter 720.303(4)
+ 720.303(5).
According to the statutes, owners should have easy access to the
so-called OFFICIAL DOCUMENTS. Nearly all documents are considered public, just a
few are considered protected -- see list below, according to
FS
720.303(5)(c) 1-9
PLEASE NOTE: Although
boards and attorneys may try to hide certain documents, not all documents
are actually protected by
client/attorney
privilege.
In theory -- and by statute --
every owner has the right to inspect, photocopy or receive copies of all documents --
10 business days after a written request has been made to the board. It is now required by
Florida statutes that you mail the request as a certified letter,
return receipt requested! The countdown starts
the day after confirmed receipt!
Starting January 1, 2025, all
official records have to be posted on a password protected website. This
should make access to official records even easier. For more detailed
information, please go to
HOA WEBSITES.
PLEASE NOTE: The
requirement of sending certified letters only comes into play if
litigation over the record request is necessary. The wording of the
statutes doesn't say that the board has to wait for a certified letter.
Many association boards allow requests to be e-mailed or even made by
phone. In my opinion a clear sign that these board members have nothing to
hide. But record requests made by e-mails and/or telephone are not
sufficient as proof if litigation is needed.
A little hint to save
expenses: In your request just ask to inspect the documents. You
can always ask -- during inspection -- for copies -- or copy the documents
with your own copying device at no cost. See
FS
720.303(5)
But since there is no real
enforcement, boards often are encouraged by their attorneys and management
companies to refuse owners access to these documents.
Especially financial records seem to be the problem.
If it's the CAM that gives you
grief over your record request make sure you remind him/her of the new
provision in FS 486.436(2)(b)7. Violating
any provision of chapter 718, chapter 719, or chapter 720 during the
course of performing community association management services pursuant to
a contract with a community association as defined in s. 468.431(1). File
a complaint with CAM Licensing. No more excuse: "I
acted on orders of the board!" CAMs can now be held liable for
their own actions!
FS 720.311 requires
Presuit
Mediation Offer before taking these issues to court.
But if the mediation fails, you can take the issue to Small Claims Court.
If
you followed the rules of FS 720.303(4) + (5) and your association
didn't oblige, there is really not much to mediate. You have the right to
the $500 penalty and the cost of the procedure. The law is very clear!
Mediation is done with a straight YES or NO! No lengthy arguments, no IFs and no BUTs! Use
your money for filing fees with your local Small Claims Court -- you get a
free mediation there anyway! A 1-Hour mediation session should be
sufficient. Make sure you pick a mediator who has a 1-Hour minimum.
Despite owners having success in court (See:
Small
Claims Court Law-Suit for Violation of Florida Statutes ) it's not
as easy as it sounds. We
have seen cases where boards fight in court to deny inspection of records,
while racking up legal fees, most likely as they try to cover up financial
irregularities!
This is one
issue that should be easily resolved by a fast ruling of an arbitrator or
administrative judge! It is
imperative that this is another issue that needs to be dealt with in the
legislature.
(4) OFFICIAL
RECORDS.--
(a) The
association shall maintain each of the following items,
when applicable, for at least 7 years, unless the
governing documents of the association require a longer
period of time, which constitute the official records of
the association:
1. Copies
of any plans, specifications, permits, and
warranties related to improvements constructed on
the common areas or other property that the
association is obligated to maintain, repair, or
replace.
2. A
copy of the bylaws of the association and of each
amendment to the bylaws.
3. A
copy of the articles of incorporation of the
association and of each amendment thereto.
4. A
copy of the declaration of covenants and a copy of
each amendment thereto.
5. A
copy of the current rules of the homeowners'
association.
6. The
minutes of all meetings of the board of directors
and of the members.
7. A
current roster of all members and their designated
mailing addresses and parcel identifications. A
member's designated mailing address is the member's
property address, unless the member has sent written
notice to the association requesting that a
different mailing address be used for all required
notices. The association shall also maintain the
e-mail addresses and the facsimile numbers
designated by members for receiving notice sent by
electronic transmission of those members consenting
to receive notice by electronic transmission. A
member's e-mail address is the e-mail address the
member provided when consenting in writing to
receiving notice by electronic transmission, unless
the member has sent written notice to the
association requesting that a different e-mail
address be used for all required notices. The e-mail
addresses and facsimile numbers provided by members
to receive notice by electronic transmission must be
removed from association records when the member
revokes consent to receive notice by electronic
transmission. However, the association is not liable
for an erroneous disclosure of the e-mail address or
the facsimile number for receiving electronic
transmission of notices.
8. All
of the association's insurance policies or a copy
thereof.
9. A
current copy of all contracts to which the
association is a party, including, without
limitation, any management agreement, lease, or
other contract under which the association has any
obligation or responsibility. Bids received by the
association for work to be performed are considered
official records and must be kept for a period of 1
year.
10. The
financial and accounting records of the association,
kept according to good accounting practices. The
financial and accounting records must include:
a. Accurate,
itemized, and detailed records of all receipts
and expenditures.
b. A
current account and a periodic statement of the
account for each member, designating the name
and current address of each member who is
obligated to pay assessments, the due date and
amount of each assessment or other charge
against the member, the date and amount of each
payment on the account, and the balance due.
c. All
tax returns, financial statements, and financial
reports of the association.
d. Any
other records that identify, measure, record, or
communicate financial information.
11. A
copy of the disclosure summary described in s.
720.401(1).
12. Ballots,
sign-in sheets, voting proxies, and all other papers
and electronic records relating to voting by parcel
owners, which must be maintained for at least 1 year
after the date of the election, vote, or meeting.
13. All
affirmative acknowledgments made pursuant to s.
720.3085(3)(c)3.
14. All
other written records of the association not
specifically included in this subsection which are
related to the operation of the association.
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(5) INSPECTION
AND COPYING OF RECORDS.--
(a) Unless
otherwise provided by law or the governing documents of the
association, the official records must be maintained within
this state for at least 7 years and be made available to a
parcel owner for inspection or photocopying within 45 miles
of the community or within the county in which the
association is located within 10 business days after receipt
by the board or its designee of a written request from the
parcel owner. This subsection may be complied with by having
a copy of the official records available for inspection or
copying in the community or by making the records available
to a parcel owner electronically via the Internet or by
allowing the records to be viewed in electronic format on a
computer screen and printed upon request. 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. An association shall allow
a member or his or her authorized representative to use a
portable device, including a smartphone, tablet, portable
scanner, or any other technology capable of scanning or
taking photographs, to make an electronic copy of the
official records in lieu of the association's providing the
member or his or her authorized representative with a copy
of such records. The association may not charge a fee to a
member or his or her authorized representative for the use
of a portable device.
(b) 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.
(c) A
member 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.
(d) Any
director or member of the board or association or a
community association manager who knowingly, willfully, and
repeatedly violates paragraph (a), with the intent of
causing harm to the association or one or more of its
members, commits a misdemeanor of the second degree,
punishable as provided in s.
775.082 or s.
775.083. For purposes of this paragraph, the term
"repeatedly" means two or more violations within a 12-month
period.
(e) Any
person who knowingly and intentionally defaces or destroys
accounting records during the period in which such records
are required to be maintained, or who knowingly or
intentionally fails to create or maintain accounting records
that are required to be created or maintained, with the
intent of causing harm to the association or one or more of
its members, commits a misdemeanor of the first degree,
punishable as provided in s.
775.082 or s.
775.083.
(f) Any
person who willfully and knowingly refuses to release or
otherwise produce association records with the intent to
avoid or escape detection, arrest, trial, or punishment for
the commission of a crime, or to assist another person with
such avoidance or escape, commits a felony of the third
degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084.
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FS
720.303(5)(g) -- Not Accessible Records
Notwithstanding this subsection, the following records are
not accessible to members or parcel owners:
1. Any
record protected by the lawyer-client privilege as
described in s.
90.502 and any record protected by the
work-product privilege, including, but not limited to, a
record prepared by an association attorney or prepared
at the attorney's express direction which reflects a
mental impression, conclusion, litigation strategy, or
legal theory of the attorney or the association and
which was prepared exclusively for civil or criminal
litigation or for adversarial administrative proceedings
or which was prepared in anticipation of such litigation
or proceedings until the conclusion of the litigation or
proceedings.
2. Information
obtained by an association in connection with the
approval of the lease, sale, or other transfer of a
parcel.
3. Information
an association obtains in a gated community in
connection with guests' visits to parcel owners or
community residents.
4. Personnel
records of association or management company employees,
including, but not limited to, disciplinary, payroll,
health, and insurance records. For purposes of this
subparagraph, the term "personnel records" does not
include written employment agreements with an
association or management company employee or budgetary
or financial records that indicate the compensation paid
to an association or management company employee.
5. Medical
records of parcel owners or community residents.
6. Social
security numbers, driver license numbers, credit card
numbers, electronic mailing addresses, telephone
numbers, facsimile numbers, emergency contact
information, any addresses for a parcel owner other than
as provided for association notice requirements, and
other personal identifying information of any person,
excluding the person's name, parcel designation, mailing
address, and property address. Notwithstanding the
restrictions in this subparagraph, an association may
print and distribute to parcel owners a directory
containing the name, parcel address, and all telephone
numbers of each parcel owner. However, an owner may
exclude his or her telephone numbers from the directory
by so requesting in writing to the association. An owner
may consent in writing to the disclosure of other
contact information described in this subparagraph. The
association is not liable for the disclosure of
information that is protected under this subparagraph if
the information is included in an official record of the
association and is voluntarily provided by an owner and
not requested by the association.
7. Any
electronic security measure that is used by the
association to safeguard data, including passwords.
8. The
software and operating system used by the association
which allows the manipulation of data, even if the owner
owns a copy of the same software used by the
association. The data is part of the official records of
the association.
9. All
affirmative acknowledgments made pursuant to s.
720.3085(3)(c)3.
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FS 720.303(5)(h) + (i)
(h) The
association or its authorized agent is not required to
provide a prospective purchaser or lienholder with
information about the residential subdivision or the
association other than information or documents required by
this chapter to be made available or disclosed. The
association or its authorized agent may charge a reasonable
fee to the prospective purchaser or lienholder or the
current parcel owner or member for providing good faith
responses to requests for information by or on behalf of a
prospective purchaser or lienholder, other than that
required by law, if the fee does not exceed $150 plus the
reasonable cost of photocopying and any attorney fees
incurred by the association in connection with the response.
(i) If
an association receives a subpoena for records from a law
enforcement agency, the association must provide a copy of
such records or otherwise make the records available for
inspection and copying to a law enforcement agency within 5
business days after receipt of the subpoena, unless
otherwise specified by the law enforcement agency or
subpoena. An association must assist a law enforcement
agency in its investigation to the extent permissible by law
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