In an all too familiar story, the association’s board of directors has decided to authorize repairs due to neglected maintenance. Of course, not every association member is happy with the board’s decision. The rumor-mill is all a flutter and accusations are rampant. While the board knows it is doing the right thing, the “members group and opposition” is up in arms and out for blood. An official record request is received by the association. A member of the opposition group demands copies of all engineering opinions which provide that the maintenance is required along with all contracts associated with the project. The member writes in his request that he will call for an appointment to come by and pick up these records. The member doesn’t call. The association does not provide the records. In response, the member sues the association for failing to provide the records within the statutorily required time. Has the association done anything wrong?
In a court case similar to the above facts, Ridge Groves Condominium Association v. Misserville, a 2016 Florida Second District Court of Appeal case, a condominium unit owner, Michael Misserville, requested an appointment to inspect and copy a roster of all residents as well as the association’s insurance policies and stated that he would call sometime within the next five days to set the appointment. However, he never called to set the appointment to inspect and copy the requested records, and the association did not send him a copy of the records requested. Nevertheless, Misserville sued the association claiming that the association violated Florida law, more specifically, section 718.111(12)(c) of the Florida Statutes, which provides that if the association fails to provide a unit owner with records within ten business days of the request, then a rebuttable presumption is created that the association willfully failed to comply and damages can be awarded in favor of the aggrieved member.
It should be noted that all associations have the lawful right to adopt reasonable rules and regulations governing the frequency, time, location, notice, and manner of record inspections and copying. In the Misserville case, the association had adopted an official records request form which provided that the member must call for an appointment.
During the trial court portion of this case, the trial court found that there was no evidence that the association had adopted the rule governing the need for the member to set the appointment and, rather shockingly, found that the association was legally obligated to deliver the records. How the trial court could reach such a conclusion is beyond words because it is rather elementary that an association is never required to provide copies of requested records in response to a member’s official record request unless, somehow, the association had obligated itself to do so. Rather, the association’s only obligation is to provide a reasonable opportunity for the member to inspect the official records and make available for copying those records specifically requested within the statutory time period. The appellate court took notice that the association had actually copied all of the records requested and set them aside in the association’s office in anticipation of Misserville’s call. Further, the appellate court found that the trial court’s conclusion that the association failed to comply with the official record request was unsupported by both evidence and law and, therefore, that portion of the judgment was reversed in favor of the association.
While the Misserville case analyzed official records requests under Chapter 718 of the Florida Statutes, more commonly known as the Condominium Act, there are a few subtle differences between the official record request provisions set out in the Condominium Act as compared to the Homeowners’ Association Act under Chapter 720 of the Florida Statutes.
As to condominium associations, the records of the association must be made available to a unit owner within 45 miles of the condominium property or within the county in which the condominium property is located and within five business days after receipt of a written request by the board or its designee. The records can also be made available to the member on the property or the association may offer the option of making the records available to a unit owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request. The failure of the association to provide the records within ten business days after receipt of a written request creates a rebuttable presumption that the association willfully failed to do so in which case the owner is entitled to actual damages or minimum damages for the association’s willful failure to comply in the amount of $50 per calendar day for up to ten days beginning on the 11th working day after receipt of the written request.
As to homeowners’ associations, section 720.303(5), Florida Statutes, requires that the records must be made available to a member for inspection or photocopying within 45 miles of the community or within the county in which the association is located. Similar to the Condominium Act, the official records can also be made available for inspection in the community or at the option of the association, by making the records available to the owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request. After receipt by the board, or its designee, of a written request for official records, the official records must be provided within ten business days (as opposed to five business days for condominium associations).
As to another point of distinction, in order for a homeowners’ association member to be entitled to a rebuttable presumption that the association willfully failed to comply with the requirements regarding official record requests, the member MUST make their request by certified mail, return receipt requested. Note that there is no similar requirement for “certified mail, return receipt requested” in the Condominium Act. Similar to the Condominium Act, the homeowners’ association member who is denied access to the official records is entitled to actual damages or minimum damages in the amount of $50 per calendar day for up to ten days, beginning on the 11th business day after the board’s receipt of the written request.
While the Condominium Act does not have statutorily set costs that a condominium association can charge for providing copies of official records to a unit owner, the Homeowners’ Association Act provides that a homeowners’ association may impose fees to cover the cost of providing copies of the official records including the cost of copying and cost required for personnel to retrieve and copy the records if the time spent retrieving and copying the records exceeds one half hour and if the personnel costs do not exceed $20 per hour. Personnel costs may not be charged for record requests that result in the copying of 25 or fewer pages. The association may charge up to $0.25 per page for copies made on the association’s photocopier.
Both condominium and homeowners’ associations allow a member, or their authorized representative, to use a portable device including smart phone, tablet, portable scanner, or other technology capable of scanning or taking photographs to make an electronic copy of the official records in lieu of the association providing the member, or the member’s authorized representative, with a copy of the records and, in such event, the association cannot charge a fee to the member or the member’s authorized representative for use of the portable device.
With all of the above in mind, remember that your community association has the lawful right to adopt reasonable rules and regulations governing the frequency, time, location, notice, and manner of record inspections and copying of its official records. If your association hasn’t, why not?! It is simple enough to do and typically not very expensive. Any association that hasn’t already done so should reach out to the association’s lawyer for further discussion.